Creamer v. Sirp

• Decision Date: 22 November 1883
• Docket Number: 10,830
• Citation: 91 Ind. 366
• Parties: Creamer v. Sirp
• Court: Indiana Supreme Court

91 Ind. 366

Creamer v. Sirp

No. 10,830

Supreme Court of Indiana

November 22, 1883

From the Dearborn Circuit Court.

The judgment is affirmed, with costs.

H. D McMullen and D. T. Downey, for appellant.

W. S Holman and W. S. Holman, Jr., for appellee.

OPINION

Franklin C.

Appellee sued appellant upon a written contract made by appellant with her father, in part for her benefit.

Issues were formed; there was a trial by jury, and a verdict returned in favor of the plaintiff for $ 100. Over a motion for a new trial judgment was rendered for the plaintiff.

The only error assigned is the overruling of the motion for a new trial.

Appellee has filed a motion to strike the bill of exceptions from the record, and insists in her brief that it is not properly a part of the record, for the reason that 30 days was given by the court within which to file the bill of exceptions, and that it was not filed within that time.

Such motions are unnecessary; whenever such objection is pointed out, or appears of record, the court will consider the question in deciding the case.

It is true that the record shows that the bill of exceptions was not filed within the 30 days allowed by the court, but the bill of exceptions shows that it was presented to the judge within the time allowed, and, under the 629th section of the code of 1881, this is sufficient.

The only reasons for a new trial presented by appellant in his brief are the improper admission and rejection of testimony. The court admitted the testimony of appellee as a witness, and rejected the testimony of appellant as a witness.

The facts in the case are these: Appellee and appellant are brother and sister; that on the 31st day of May, 1861, Frederick Creamer and wife, the father and mother of these parties, conveyed by deed to the defendant a certain tract of land containing 70 acres, situated in said county; that on the 17th day of January, 1865, in consideration of said deed, and the transfer of personal property with the possession of said premises, the defendant agreed in writing with the father, among other things, after the death of the father and mother, to pay to five sisters $ 100 each, in annual instalments; that appellee's $ 100 was payable in two years after the death of the old people; that the mother died March 3d, 1870, and the father died July 1st, 1878; that the plaintiff, at the time of said agreement, consented to, and accepted said arrangement as a satisfactory adjustment and disposition of her father's property, and then so informed appellant; that after the same became due she demanded the $ 100 of defendant, which he refused to pay, and this suit was commenced to recover the same on the 11th day of September, 1881.

The defendant, on the 1st day of May, 1882, answered by a denial, and by a special paragraph setting up that subsequent to the execution of the agreement sued on, to wit, on the -- day of April, 1865, he and the father agreed to cancel the former agreement and make a new one, and they did execute a new one, by which he was only to pay the plaintiff $ 1 instead of $ 100. The new agreement set up by the defendant is the same as the old agreement sued on by plaintiff, with the above named exception.

There is no date given to the copy of the new agreement in the record.

The parties gave their respective agreements in...