Gandy v. Orr

• Citation: 44 N.E.2d 181,112 Ind.App. 605
• Decision Date: 21 October 1942
• Docket Number: 16872.
• Parties: GANDY v. ORR.
• Court: Indiana Appellate Court

44 N.E.2d 181

112 Ind.App. 605

GANDY v. ORR.

No. 16872.

Appellate Court of Indiana, in Banc.

October 21, 1942

Mountz & Mountz, of Garrett, Kissinger & Kissinger, of Columbia City, and Otto E. Grant, of Ft. Wayne, for appellant.

Bloom & Bloom, of Columbia City, and Rex S. Emerick, of Kendallville, for appellee.

BLESSING Judge.

The appellant, Ethel A. Gandy, filed a claim against the administrator of the estate of Jacob E. Pence, by which she sought to recover the sum of $7,500, with interest thereon less certain credits which had been given. The money was alleged to have been loaned to the administrator's decedent in accordance with the terms and conditions of a written contract entered into by the decedent and Elmer E Gandy. The contract was thereafter assigned by said Elmer E Gandy to the appellant.

In addition to the agreement sued upon, the contract contained many other items, among which were an assignment of a mortgage and a release of a like instrument.

The issues were joined upon appellant's claim and the administrator's statutory defenses. The cause was tried to a jury, which returned a verdict against the appellant and in favor of the administrator. The court then rendered a judgment upon the verdict, and a motion for new trial was thereafter filed and overruled. The overruling of the motion for new trial is the only error relied upon for reversal. The specifications under said motion for new trial relate to the giving of certain instructions and the refusal to admit certain testimony upon the trial of the cause.

Section 6-1015, Burns' 1933, Section 3133, Baldwin's 1934, provides that in a claim against an estate, it is not necessary for the executor or administrator to plead any matter by way of answer, except a set-off or counterclaim. It has been held, under such section, that proof of the execution of written instruments which are the foundation of claims must be made, although such execution is not denied under oath. Digan v. Mandel, 1907, 167 Ind. 586, 79 N.E. 899, 119 Am.St.Rep. 515; Deeter v. Burk, 1915, 59 Ind.App. 449, 107 N.E. 304. Under the issues as joined, the burden of proving the execution of the contract upon which appellant's claim is based, was upon appellant. In her case-in-chief, appellant put upon the stand the notary public who took the acknowledgment of the parties to the contract, and she was the only witness who testified as to the execution of the contract between Gandy and Pence. However, in rebuttal, appellant attempted to introduce new evidence as to the execution of the contract and as to the events leading up to such execution. Upon objections by appellee, the court refused to allow such testimony to be given, stating as the reason for such ruling that the evidence was "part of plaintiff's main case and should have been introduced by plaintiff before resting." Appellant contends that the court erred in making this ruling.

The only testimony offered by appellee on the question of execution of the contract that we find in the record is the statement of decedent's son who said he made a search of his father's papers, kept in various places, about ten months after the contract in question was supposed to have been executed, and he was unable to locate such contract.

Generally speaking, the order in which proof is adduced on any issue is within the sound discretion of the court trying the case, and the refusal of the court to permit the introduction of evidence in rebuttal that is a part of a litigant's case-in-chief is cause for reversal only in the event of the abuse of such discretion. Stalker v. Breeze, 1917, 186 Ind. 221, 114 N.E. 968; Stewart v. Smith, 1887, 111 Ind. 526, 13 N.E. 48; Carter v. Aetna Life Ins. Co., 1940, 217 Ind. 282, 27 N.E.2d 75. While the court could have properly admitted the additional testimony to support the execution of the contract as to delivery, we cannot say on review of the record that there was shown an abuse of discretion in the court's ruling.

The appellant makes further contention with respect to the refusal of the court to permit the introduction of evidence in rebuttal on the question of want of consideration for the agreement. This contention we think has merit. The burden of this issue was upon appellee, and much evidence, oral and documentary, was introduced by appellee to establish the fact that appellant's assignor never loaned appellee's decedent the sum of $7,500. An examination of the evidence as...