Bartlett v. Burden
| Decision Date | 13 December 1894 |
| Docket Number | 1,357 |
| Citation | 39 N.E. 175,11 Ind.App. 419 |
| Parties | BARTLETT, EXECUTOR, v. BURDEN |
| Court | Indiana Appellate Court |
From Delaware Circuit Court.
Judgment affirmed.
J. N Templer and E. R. Templer, for appellant.
J. W Ryan and W. A. Thompson, for appellee.
ROSS C. J. Lotz, J., took no part in this decision.
The appellee filed a claim consisting of notes and accounts against the estate of her deceased husband, Nehemiah Burden, amounting to twenty-eight hundred and two dollars and fifteen cents. Of this claim the appellant allowed the sum of ten hundred and forty-three dollars and fifty cents and rejected the balance. The appellee refusing to accept the allowance, the claim was transferred to the issue docket, and upon a trial by jury was awarded twenty-seven hundred dollars. The court, after overruling appellant's motion for a new trial, rendered judgment on the verdict.
It is insisted by counsel that the verdict of the jury is not sustained by sufficient evidence. In support of this contention counsel say: "It is a fundamental principle of our law that in order to recover in a civil action, the plaintiff must do so by a preponderance of the evidence." Then, after calling attention to the testimony of a number of witnesses concerning the genuineness of one of the notes embraced in the claim, continuing, say: "Now, out of this list of witnesses two give their opinion that the note in controversy was the note of the decedent, while three, who are best calculated to know all about his signature, testified that in their opinion it was not his signature, and not his note."
Counsel, in pursuing this line of argument, seemed to have overlooked the rule which prevails in this court relative to the court's right to consider the conflicting evidence and determine upon which side it preponderates, hence we will repeat that this court never attempts to weigh conflicting evidence and determine which side has the preponderance. That is the province of the jury, and when they have once decided and their decision has received the approval of the trial court, this court will not disturb the verdict and judgment on the weight of the evidence.
In this case there is some evidence to sustain the verdict. The question which counsel seek to raise is the excessive amount of the recovery. To raise that question properly the motion for a new trial should have stated as one of the reasons therefor that there was error in the assessment of the amount of recovery, the same being too large. No such...
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