Fuller v. Fuller

• Decision Date: 19 February 1913
• Docket Number: No. 7,832.,7,832.
• Parties: FULLER v. FULLER.
• Court: Indiana Appellate Court

52 Ind.App. 488

100 N.E. 869

FULLER

v.FULLER.

No. 7,832.

Appellate Court of Indiana, Division No. 2.

Feb. 19, 1913.

Appeal from Circuit Court, Fulton County; Harry Bernetha, Judge.

Action by Major Fuller against Mary Fuller. Judgment for defendant, and plaintiff appeals. Affirmed.

Rowley & Mattice and I. Conner, all of Rochester, for appellant. Montgomery & Emmons and Holman, Stephenson & Bryant, all of Rochester, for appellee.

LAIRY, J.

As disclosed by the record in this case, appellee is the daughter-in-law of appellant, being the widow of his deceased son, Arthur C. Fuller. In the lifetime of Arthur Fuller appellant conveyed to him a farm of 80 acres in Fulton county, Ind., which was devised by Arthur C. Fuller to appellee. The action was brought by appellant to enforce a vendor's lien against this real estate in the hands of appellee for $1,400 and interest, as the unpaid purchase price of the land. Appellee filed three paragraphs of answer. The first was a general denial, the second set up the statute of limitations, and the third was an answer of former adjudication. There was a general finding and judgment for appellee. The only error assigned in this court is the action of the trial court in overruling appellant's motion for a new trial.

[1] The first question presented under this assignment relates to the sufficiency of the evidence to sustain the finding. As this is a case not triable by a jury, we are asked by appellant to consider and weigh the evidence given in the cause and to give judgment according to the clear weight of such evidence, as provided by section 8 of an act concerning proceedings in civil cases, approved March 9, 1903. Acts 1903, p. 338; Burns' Stat. 1908, § 698. It has been frequently decided by this court and the Supreme Court that this statute does not apply to cases where the evidence upon which the finding of the trial court rests consists in whole or in part of oral testimony of witnesses delivered at the trial. Karges Furniture Co. v. Amalgamated, etc., 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788, 6 Ann. Cas. 829;Hudelson v. Hudelson, 164 Ind. 694, 74 N. E. 504;Maitland v. Reed, 37 Ind. App. 469, 77 N. E. 290. As the evidence in this case consists largely of oral testimony, we are governed by the well-settled rule which forbids a court on appeal to weigh conflicting evidence. We can consider only the evidence favorable to the finding, and, if there is some evidence tending to support it in every essential, it must be permitted to stand, regardless of evidence to the contrary. Klein v. Ninde, 45 Ind. App. 672, 91 N. E. 611;Schmidt v. Zahrndt, 148 Ind. 447, 47 N. E. 335. There were three issues of fact formed by the pleadings and submitted to the court for trial. If there is evidence sufficient to justify a finding in favor of the defendant upon any one of these issues, such finding is sustained by evidence. It seems to be conceded by both parties to this appeal that no evidence was introduced to sustain the second paragraph of answer setting up the statute of limitations. The finding cannot, therefore, rest upon this issue; but it is...