Anselm v. Anselm
| Decision Date | 11 December 1947 |
| Docket Number | 17692. |
| Citation | 75 N.E.2d 921,118 Ind.App. 169 |
| Parties | ANSELM v. ANSELM. |
| Court | Indiana Appellate Court |
Appeal from Marion Superior Court No. 2; Cecil A. Taylor, Special Judge.
Robert E. Coates and Thurl C. Rhodes, both of Indianapolis, for appellant.
L Russell Newgent, of Indianapolis, for appellee.
This is an appeal from a judgment canceling a promissory note rendered in an action instituted by the appellee against the appellant. The trial was to the court without a jury, and a general finding was rendered in favor of appellee upon his complaint and that the relief prayed in the complaint be allowed.
Appellant's motion for a new trial was filed and overruled and this appeal perfected.
The only error assigned is the overruling of the motion for a new trial which alleged as grounds therefor that (1) the decision is not sustained by sufficient evidence; (2) that the decision is contrary to law; and (3) error in excluding certain testimony.
One of the reasons alleged for the relief prayed was that the $5000 note, dated March 9, 1943, singed by appellee and held by appellant, was executed without any consideration. The evidence upon this issue was sharply conflicting. Considering the evidence most favorable to appellee and all reasonable inferences to be drawn therefrom, we find that there is evidence tending to show that apellee never was indebted to appellant in any amount and that he never received any money from the appellant as a consideration for the execution of said note that at the time the note was executed appellee had a divorce case pending in the courts and that his former wife, the plaintiff therein, was claiming appellee was indebted to her in the sum of $2200; that appellee told appellant of such fact, and that appellant told appellee to sign the note in controversy and then appellant would have a claim of $5000 against his business which could be used to defeat the claim of appellee's former wife in the event she attempted to force appellee to pay any more alimony; that appellee signed the note of March 9, 1943, for $5000 for such purpose and without receiving any cash consideration therefor; that the note was to be used by appellant only in the event an attempt was made to collect more alimony, which was never done. On the contrary, there is evidence by appellant and her witnesses that at the time the note was executed appellant counted out $5000 in U. S. currency and gave the same to appellee to be used and invested in his business and that the same constituted the consideration for the execution of the note. The weight to be given the testimony of the various witnesses and their credibility was a question for the exclusive determination of the trial court and, since there is some evidence to sustain his finding upon the issue of no consideration, this court will not disturb the finding upon appeal or substitute its judgment upon disputed questions of fact for that of the trier of the facts. Cornet v. Guedelhoefer, 1941, 219 Ind. 200 209, 36 N.E.2d 933, 37 N.E.2d 681; Fidelity & Deposit Co. v. Standard Oil Co., 1936, 101 Ind.App. 301, 305, 199 N.E. 169; Hauser v. George, 1935, 100 Ind.App. 346, 351, 195 N.E. 592.
If the note in controversy was in fact executed without any consideration, such fact would be sufficient to justify and sustain the court in ordering the note canceled and annulled. E. T. Kenney Co. v. Ruff, 1904, 34 Ind.App. 259 265, 72 N.E. 622; Kramer v. Williamson, 1893, 135 Ind. 655, 657,...
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