Stoft v. Herrell

24 N.E. 1090, 124 Ind. 478, 1890 Ind. LEXIS 357

• Court: Indiana Supreme Court
• Decided: June 25, 1890
• Docket: No. 14,408
• Status: Published

Opinion

Coffey, J.

This was a proceeding instituted by the appellees before the board of commissioners of Vanderburgh county, to vacate a certain described portion of a public highway located in said county. Upon the filing of a report by the viewers appointed to view said highway the appellants filed a remonstrance. Thereupon the board of commissioners appointed reviewers, two of whom reported in favor of said proposed vacation.

Filed June 25, 1890.

Upon this report an order was entered vacating the portion of the highway described in the petition, from which an appeal was taken to the Vanderburgh Circuit Court.

In that court the cause was tried by a jury, resulting in a verdict for the appellees, upon which the court, over a motion for a new trial, ’rendered judgment vacating the highway as prayed in the petition.

The error assigned here calls in question the correctness of the ruling of the circuit court in overruling the motion for a new trial.

The reasons assigned for a new trial were :

First. That the verdict of the jury was not supported by sufficient evidence.

Second. That the verdict was contrary to law.

We have carefully read the evidence, and, while'a greater number of witnesses testified on behalf of the appellants than on behalf of the appellees, we find much conflict. This court will reverse a cause on the evidence where it does not support the verdict of the jury or the finding of the court; but it will not undertake to weigh conflicting evidence with a view of ascertaining with which party the preponderance rests. Gagg v. Vetter, 41 Ind. 228; Fort Wayne, etc., R. R. Co. v. Husselman, 65 Ind. 73.

If there is legal evidence in the record which tends to support the verdict of the jury, or the finding of the court, on every material point, this court will not disturb the verdict or finding on the weight of the evidence. Schofield v. Henderson, 67 Ind. 258; Swales v. Southard, 64 Ind. 557.

The only question presented by the record before us, is the one involving the weight of the evidence.

Judgment affirmed.