Burns v. Thompson
| Decision Date | 06 April 1883 |
| Docket Number | 8571 |
| Citation | 91 Ind. 146 |
| Parties | Burns et al. v. Thompson |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled October 19, 1883.
From the Wabash Circuit Court.
The judgment is affirmed, at the costs of the appellants.
M. H Kidd, N. G. Hunter and A. Taylor, for appellants.
C Cowgill, H. B. Shiveley and C. E. Cowgill, for appellee.
The appellee sued the appellants Daniel Burns, Jr., and Harvey F. Woods, sheriff of Wabash county, the complaint alleging, at length and with particularity, that two judgments were obtained in the Wabash Circuit Court, one by the First National Bank of Wabash, for $ 623.32, and the other by certain persons composing the Citizens Bank of Wabash, for $ 244.13, both against one Moody as principal and the appellee and one Strait as co-sureties; that Moody was insolvent, and he paid nothing upon either of said judgments; that the appellant Daniel Burns, Jr., through his attorney named, had been and was wrongfully attempting to cheat and defraud the appellee in respect to said judgments in the following manner: At the time said judgments were rendered said Strait had real estate on which the judgments were liens, fully sufficient to pay his portions of the judgments, and was indebted to one Daniel Burns, Sr., who, to secure payment of his claim out of Strait's property, by the agreement and consent of Strait, from the proceeds of sales to him, said Burns, Sr., of Strait's property, satisfied to said banks for Strait his one-half of said judgments. It was agreed by and between the parties, the banks, the appellee and Strait, said attorney acting as attorney for Strait, that the appellee and Strait were ready and willing to pay their respective portions of said judgments, and should do so contemporaneously, and appellee, knowing that Strait was at the time able to pay, and relying on his representations that he would pay his portion as soon as the appellee paid his, did pay his one-half, and afterward Strait's portions of said judgments were entirely paid and satisfied as aforesaid. At the time Strait's portions were so paid, his said attorney, claiming to be representing the appellant Burns, Jr., procured assignments by said banks respectively of their said judgments to be made to Burns, Jr. When the banks were asked to so assign said judgments, they, and each of them, objected and refused, until it was stated to them and first agreed by said Burns, Jr., or by said attorney acting for him, that said judgments were entirely and forever satisfied as far as any claim that could or might ever be asserted against the appellee was concerned; and it was alleged that said banks, or either of them, never sold said judgments to the appellant Burns, Jr., who gave no consideration for said judgments, or either of them; but said judgments were entirely paid and satisfied by said Strait out of his own property and by the appellee, to said banks, the respective owners thereof, before the pretended assignments were made to Burns, Jr.; that he, without right and wrongfully, caused executions to be issued on said judgments to the appellant Woods, as sheriff, who had levied upon and seized certain real estate owned by the appellee, and had advertised it for sale, etc. Prayer that said judgments and said writs be adjudged satisfied, and that the appellants be enjoined, etc.
The appellants answered by a general denial. The cause was tried by a jury, and a verdict was returned in favor of the appellee. A motion for a new trial, filed by the appellants, was overruled, and judgment was rendered in accordance with the prayer of the complaint. The overruling of the motion for a new trial is assigned as error.
In the motion for a new trial, the cause numbered the first contained two subdivisions, and the first subdivision appears in the transcript before us as follows:
The references in these parentheses are to the bill of exceptions, which was not signed or filed until long after the motion for a new trial had been overruled.
The statute provides that the application for a new trial must be by motion upon written causes filed at the time of making the motion....
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KR Enters., Inc. v. Zerteck Inc., s. 20-2069 & 20-2155
...they exist, regardless of the oral evidence varying the terms of any writing between the parties.") (quotations omitted); Burns v. Thompson , 91 Ind. 146, 150 (1883) ("[A]side from the question of fraud, while a dispositive instrument can not be varied by parol, so far as the parties to it ......
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State Bank of Ardock, a Corp. v. Burke
... ... attempted to be used for a purpose different from what was ... intended, parol evidence is admissible. Thompson v ... White, 1 Dall. 427 ... Testimony ... may be offered to prove the existence of an oral agreement ... made collaterally ... 696 ... The ... rule against contradicting the tenor of a written instrument ... by parol does not apply to strangers. Burns v ... Thompson, 91 Ind. 146 ... BIRDZELL, ... J. CHRISTIANSON, Ch. J., and NUESSLE, BURKE, and JOHNSON, ... JJ., concur ... ...
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Schueck Steel Company v. Galvpro, Cause No. NA 00-240-C H/K GP (S.D. Ind. 5/22/2003)
...admission of parol evidence on the issue of whether parties intended to release plaintiff's claim against third party), Burns v. Thompson, 91 Ind. 146, 150 (Ind. 1883), and White v. Woods, 109 N.E. 761, 762-63 (Ind. 1915). Because ING was in privity with GalvPro, however, it is not clear th......
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American Building & Loan Association v. Fowler
... ... Fowler to ... make the application and execute the bond and mortgage in ... suit. Jones, Evidence (2d ed.) p. 547; Burns v ... Thompson (1883), 91 Ind. 146, 150; Moore v ... Harmon, supra; Clem v. New ... Castle, etc., R. Co. (1857), 9 Ind. 488; Abbott, Trial ... ...