Applegate v. Baxley

• Decision Date: 26 January 1884
• Docket Number: 10,931
• Citation: 93 Ind. 147
• Parties: Applegate v. Baxley et al
• Court: Indiana Supreme Court

93 Ind. 147

Applegate v. Baxley et al

No. 10,931

Supreme Court of Indiana

January 26, 1884

From the Harrison Circuit Court.

M. W Funk and W. D. Mauck, for appellant.

W. N Tracewell and R. J. Tracewell, for appellees.

OPINION

Bicknell C. C.

This was a suit by the appellant against the appellees to foreclose a mortgage made by William H. Applegate, their ancestor.

The defendants pleaded the general denial and payment by their ancestor, and they filed a cross complaint alleging such payment, and praying that the mortgage be declared satisfied and their title to the land quieted.

The plaintiff replied denying the payment, and answered the cross complaint by a denial.

The jury found for the defendants upon the complaint and upon the cross complaint. A motion by the plaintiff for a new trial was overruled, judgment was rendered for the defendants and the plaintiff appealed. She assigns as error the overruling of the motion for a new trial.

There are six reasons for a new trial; the fifth is for newly discovered evidence, and the sixth is for surprise at the testimony of three of the defendants' witnesses. Both of these reasons are supported by affidavits, which are set forth in the motion for a new trial, but are not shown by a bill of exceptions. These reasons, therefore, can not be considered. Fryberger v. Perkins, 66 Ind. 19; Marks v. Jacobs, 76 Ind. 216; City of Washington v. Small, 86 Ind. 462; Powers v. State, 87 Ind. 144.

The first and second reasons for a new trial are that the verdict is not sustained by the evidence and is contrary to law. One of the witnesses testified that the plaintiff had admitted that the mortgage had been settled and paid by the mortgagor before he died. There was, therefore, evidence tending to support the verdict, and in such a case the verdict can not be set aside.

The third and fourth reasons for a new trial are that the court, over the objection of the defendant, improperly permitted several witnesses to testify to conversations of the plaintiff, in which she stated that she and Will (the mortgagor) had settled the note and mortgage before he died.

The testimony urged as incompetent is as follows:

Jesse Watson, the executor of the mortgagor, testified "that soon after he took out letters of administration he went to the house of the plaintiff for the purpose of getting a machine, that while there he asked the plaintiff what Will Applegate owed her; she answered, $ 20 on a machine, and that was all the estate owed her; I then asked her concerning the note and mortgage, and she said that Will and she had settled that the day before he died, and she had promised to give it to his wife."

Alice Watson testified: "I was at the house of Miranda (Rachel...