Feichter v. Swift
| Decision Date | 02 November 1921 |
| Docket Number | 10,704 |
| Citation | 132 N.E. 662,77 Ind.App. 427 |
| Parties | FEICHTER v. SWIFT |
| Court | Indiana Appellate Court |
Rehearing denied January 26, 1922.
From Allen Superior Court; William N. Ballou, Judge.
Action by Jacob H. Feichter against Rose Swift. From the judgment rendered, the plaintiff appeals.
Reversed.
Acken & Peters, for appellant.
Breen & Morris, for appellee.
Complaint by appellant to foreclose a mechanic's lien, alleging that he furnished lumber to appellee for the erection of a barn at an agreed price of $ 931. Appellee contended that she purchased the lumber from appellant at $ 40 per thousand feet and before suit tendered appellant $ 425, which was later paid into court.
The court found that there was due and owing appellant $ 420.72 that being the value of the lumber at $ 40 per thousand. On February 26, 1919, appellant filed his motion for a new trial. This motion was overruled May 8, 1919, and exception reserved. On May 14, judgment was rendered, appeal prayed, granted, and thirty days given in which to file bond and bill of exceptions. The bill of exceptions was filed May 29, which was during the term at which the motion for new trial was overruled. The only error assigned relates to the action of the court in overruling the motion for a new trial.
Appellee insists that no question is presented. Her contention is that when the motion for a new trial was overruled no time was given in which to file a bill of exceptions; that the order made on the rendition of judgment is not authorized by law and is void, and that the bill of exceptions is not therefore in the record. This identical question was passed upon by this court in Western Indemnity Co. v. Davidson (1921), 75 Ind.App. 77, 129 N.E. 860, where the question was decided against appellee's contention.
During the trial appellee offered to prove by Christian Cramer that he purchased some lumber for a barn from appellant about the same time appellee got her lumber, and that he paid appellant $ 40 per thousand. She also offered to prove by herself that while building her barn she purchased some lumber from another party at $ 40 per thousand feet. At that time the court sustained appellant's objections to the proffered testimony. After the parties had rested their case, and after argument the cause was taken under advisement. A few days later the court on its own motion revised its ruling on the admission of this evidence, overruled appellant's objections and permitted the witnesses to testify to the facts as above stated. Immediately following the introduction of this evidence the court entered its finding in favor of appellant for $ 420.72 in harmony with appellee's contention. It is quite reasonable to assume that the court considered this evidence as important, and that it was influential in the mind of the court. If it was error to admit this evidence, such error cannot be said to be harmless.
It is a familiar rule of evidence that any fact or circumstance that tends to render a claimed fact more or less probable is relevant to show whether the claimed fact exists or not....
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