Cart v. Fleming

• Decision Date: 21 November 1949
• Docket Number: No. 17935.,17935.
• Citation: 119 Ind.App. 690,88 N.E.2d 577
• Parties: CART v. FLEMING et al.
• Court: Indiana Appellate Court

119 Ind.App. 690

88 N.E.2d 577

CART

v.FLEMING et al.

No. 17935.

Appellate Court of Indiana, in Banc.

Nov. 21, 1949.

Action by Ullin H. Cart against Claude F. Fleming, Henry H. Cripe, and Christian J. Gunder to recover damages on an attachment bond.

The Circuit Court, Noble County, Fred L. Bodenhafer, J., entered judgment for the defendants and the plaintiff appealed.

The Appellate Court, Bowen, C. J., held that the assignment of error on appeal as to overruling of plaintiff's motion for a new trial, on ground that the verdict was not sustained by sufficient evidence, presented no question, and affirmed the judgment.Wm. H. Kissinger, Columbia City, James F. Biddle, Columbia City, for appellant.

Harry E. Vernon, Goshen, for appellees.

BOWEN, Chief Judge.

This is an appeal from a judgment for defendants in an action to recover damages on an attachment bond. The error assigned for reversal is the overruling of appellant's motion for a new trial. The sole ground of the motion for a new trial is that the verdict of the jury is not sustained by sufficient evidence.

It has been held in many decisions of this court and the Supreme Court of this State, that where a verdict is negative, an assignment of error in a motion for a new trial that a verdict against a party having the burden of proof is not sustained by sufficient evidence presents to question. Such decisions point out that the proper way to challenge such a negative verdict is by an assignment that such verdict is contrary to law. Skelton v. Bank's Estate, 1945, 116 Ind.App. 280, 63 N.E.2d 546;Wadler v. Mogul Rubber Corp., 1945, 116 Ind.App. 152, 61 N.E.2d 472;Department of Insurance v. Indiana Travelers Assur. Co., 1945, 115 Ind.App. 285, 58 N.E.2d 761;McKee v. Mutual Life Ins. Co., 1943, 222 Ind. 10, 51 N.E.2d 474;Wilson v. Rollings, 1937, 214 Ind. 155, 14 N.E.2d 905;Warren Co. v. Exodus, 1943, 114 Ind.App. 651, 54 N.E.2d 775;Smith Executrix v. Strock, Executor, 1944, 115 Ind.App. 518, 60 N.E.2d 157;Scoopmire v. Taflinger, 1944, 114 Ind.App. 419, 52 N.E.2d 728;Myers v. Brane, 1944, 115 Ind.App. 144, 57 N.E.2d 594;Cleveland, C. C. & St. L. R. Co. v. Starks, 1915, 58 Ind.App. 341, 106 N.E. 646.

We feel that the modern tendency is toward greater liberality in the construction of rules of procedure as reflected in the later opinions of this court and the Supreme Court to the end that causes presented by party litigants may be decided upon their merits. Nevertheless, we feel that we...