Chicago Furniture Co. v. Cronk

• Decision Date: 02 June 1905
• Docket Number: No. 5,179.,5,179.
• Parties: CHICAGO FURNITURE CO. et al. v. CRONK.
• Court: Indiana Appellate Court

35 Ind.App. 591

74 N.E. 627

CHICAGO FURNITURE CO. et al.

v.CRONK.

No. 5,179.

Appellate Court of Indiana, Division No. 1.

June 2, 1905.

Appeal from Circuit Court, Lake County; W. C. McMahan, Judge.

Action by Addie Cronk against the Chicago Furniture Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. A. Gavit, for appellants. A. F. Knotts, for appellee.

ROBINSON, J.

Suit by appellee for the alleged wrongful taking and conversion of personal property, consisting of household goods, wearing apparel, and other property. A trial by jury resulted in a verdict for appellee for $200. Overruling appellant's motion for a new trial is the only error assigned.

It is first argued that the assessment of the amount of recovery is erroneous, being too large, and that the verdict is not sustained by sufficient evidence. However, upon a careful reading of all the evidence, we cannot disturb the jury's conclusion. There was a sharp conflict in some of the evidence, and it would serve no useful purpose to set out any of the evidence. The credibility of the witnesses was a matter to be determined by the trial court and the jury, who saw and heard the witnesses testify. There is evidence in the record authorizing the jury in fixing the amount of the recovery at the amount they did fix it. See Tea v. Gates, 10 Ind. 164:Kavanaugh v. Taylor, 2 Ind. App. 502, 28 N. E. 553.

The only remaining question argued is the correctness of the thirteenth instruction. One reason for asking a new trial was that “the court erred in giving instructions numbered 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 on its own motion.” To render this available as a cause for a new trial, all the instructions named must be incorrect. But under this assignment appellant assails the thirteenth instruction only. It is not claimed there was any error in giving the other instructions. As it could not be claimed that they were all erroneous, the motion for a new trial for this cause, as appellee's counsel insists, must fall. Cargar v. Fee, 140 Ind. 572, 39 N. E. 93;Indiana, etc., R. Co. v. Snyder, 140 Ind. 647, 39 N. E. 912;Ohio, etc., R. Co. v. McCartney, 121 Ind. 385, 23 N. E. 258;Williamson v. Brandenberg, 6 Ind. App. 97, 32 N. E. 1022;Mock v. City of Muncie, 9 Ind. App. 536, 37 N. E. 281;Douglass v. State, 18 Ind. App. 289, 48 N. E. 9;Lawrence v. Van Buskirk, 140 Ind. 481, 40 N. E. 54;Young v. Montgomery, 161 Ind. 68, 67 N. E. 684;Ginn v. State, 161 Ind. 292, 68 N. E. 294.

Moreover, the instructions are not properly in the record. In the transcript is the original bill of exceptions containing the evidence. Immediately following the evidence, and preceding the judge's certificate, appears a copy of the instructions. At the close is the judge's certificate, which is his original certificate. It seems it is attempted to bring the instructions into the record by copying them into and making them a part of the original bill of exceptions containing the evidence. That is, if the instructions, which are copied into the transcript, are in the record by a bill of exceptions, and no attempt has been made to put them into the record in any other way, a part of the bill by which they are brought in is an original bill. There is no more...