Delphos Hoop Co. v. Smith, No. 21,913.
| Docket Nº | No. 21,913. |
| Citation | 95 N.E. 309, 176 Ind. 29 |
| Case Date | June 08, 1911 |
| Court | Supreme Court of Indiana |
176 Ind. 29
95 N.E. 309
DELPHOS HOOP CO.
v.
SMITH.
No. 21,913.
Supreme Court of Indiana.
June 8, 1911.
Appeal from Circuit Court, Wells County; Chas. E. Sturges, Judge.
Action by Josiah H. Smith against the Delphos Hoop Company. From a judgment for plaintiff, defendant appealed to the Appellate Court, and the cause was transferred to the Supreme Court under Burns' Ann. St. 1908, § 1405. Affirmed.
[95 N.E. 310]
Eichhorn & Vaughn, for appellant. Sharp & Sturgis, for appellee.
MONKS, J.
This action was brought by appellee to recover for work and labor performed by appellee in sawing lumber under a contract with appellant and for board furnished by appellee to appellant's servants at appellant's request. A trial of said cause resulted in a verdict in favor of appellee, and over a motion for a new trial judgment was rendered against appellant.
At the close of appellee's evidence in chief, and before appellant entered upon the introduction of its evidence, appellant moved the court to dismiss the action for the reason that the evidence shows that one Bowman “is a party in interest in the cause of action and in obtaining the relief demanded and has an interest in the subject-matter involved in plaintiff's complaint.” This motion was overruled. Appellant thereupon moved the court to instruct the jury to return a verdict in its favor “on the issues formed on the complaint.” This motion was overruled. Each of these rulings was assigned as a cause for new trial.
It is insisted by appellant that the court erred in overruling each of said motions because “on the trial of said cause one Bowman, a witness for appellee, testified that he was to bear one-half of the expenses and receive one-half of the profits,” and “by sections 251, 252, 263, Burns 1908, it is enacted that every action must be prosecuted in the name of the real party in interest, and that all persons having an interest in the subject-matter of the action and in obtaining the relief demanded shall be joined as plaintiffs.”
[1] Said motions were properly overruled for the reason, if no other, that evidence had been given to sustain an item in the complaint for board furnished the employés of appellant at its request to which the evidence of the witness Bowman had no application, and in which there was no evidence that any one except appellee had any interest whatever.
[2] Moreover, the right of appellant to question the action of the court in overruling the motion of appellant to instruct the jury to...
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Pinkston v. State, No. 3--574A91
...of evidence constituted a waiver of any error in the ruling on the [163 Ind.App. 635] motion. 2 Delphos Hoop Co. v. Smith (1911), 176 Ind. 29, 95 N.E. 309; Berry v. State Bank of Otterbein (1935), 99 Ind.App. 655, 193 N.E. 922; see, also, cases collected in 26 West's Indiana Digest, Trial, ......
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Bilskie v. Bilskie, No. 9707.
...his favor is waived, where such party introduces evidence in his behalf, after such motion is overruled. Delphos Hoop Co. v. Smith (1911) 176 Ind. 29, 95 N. E. 309;Illinois Surety Co. v. State ex rel. (1913) 55 Ind. App. 31, 103 N. E. 363. The same rule is applicable where the trial is by t......
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Farmers & Merchants Bank of Hanna v. Peoples Trust & Sav. Bank of La Porte, No. 15123.
...his favor is waived, where such party introduces evidence in his behalf, after such motion is overruled. Delphos Hoop Co. v. Smith (1911) 176 Ind. 29, 95 N.E. 309;Illinois Surety Co. v. State ex rel. (1913) 55 Ind. App. 31, 103 N. E. 363.” Bilskie v. Bilskie (1919) 69 Ind. App. 595, 122 N.E......
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Chicago, I.&L. Ry. Co. v. Medlock, No. 23108.
...error, if any, in this ruling was waived by appellant's subsequent introduction of evidence in its own behalf. Delphos Hoop Co. v. Smith, 176 Ind. 29, 31, 95 N. E. 309; Baltimore, etc., R. Co. v. Conoyer, 149 Ind. 524, 527, 48 N. E. 352, 49 N. E. 452. [4][5] The objection urged against inst......
-
Pinkston v. State, No. 3--574A91
...of evidence constituted a waiver of any error in the ruling on the [163 Ind.App. 635] motion. 2 Delphos Hoop Co. v. Smith (1911), 176 Ind. 29, 95 N.E. 309; Berry v. State Bank of Otterbein (1935), 99 Ind.App. 655, 193 N.E. 922; see, also, cases collected in 26 West's Indiana Digest, Trial, ......
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Bilskie v. Bilskie, No. 9707.
...his favor is waived, where such party introduces evidence in his behalf, after such motion is overruled. Delphos Hoop Co. v. Smith (1911) 176 Ind. 29, 95 N. E. 309;Illinois Surety Co. v. State ex rel. (1913) 55 Ind. App. 31, 103 N. E. 363. The same rule is applicable where the trial is by t......
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Farmers & Merchants Bank of Hanna v. Peoples Trust & Sav. Bank of La Porte, No. 15123.
...his favor is waived, where such party introduces evidence in his behalf, after such motion is overruled. Delphos Hoop Co. v. Smith (1911) 176 Ind. 29, 95 N.E. 309;Illinois Surety Co. v. State ex rel. (1913) 55 Ind. App. 31, 103 N. E. 363.” Bilskie v. Bilskie (1919) 69 Ind. App. 595, 122 N.E......
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Chicago, I.&L. Ry. Co. v. Medlock, No. 23108.
...error, if any, in this ruling was waived by appellant's subsequent introduction of evidence in its own behalf. Delphos Hoop Co. v. Smith, 176 Ind. 29, 31, 95 N. E. 309; Baltimore, etc., R. Co. v. Conoyer, 149 Ind. 524, 527, 48 N. E. 352, 49 N. E. 452. [4][5] The objection urged against inst......