Graves v. Duckwall

• Decision Date: 07 November 1885
• Docket Number: 12,166
• Citation: 3 N.E. 263,103 Ind. 560
• Parties: Graves v. Duckwall
• Court: Indiana Supreme Court

3 N.E. 263

103 Ind. 560

Graves v. Duckwall

No. 12,166

Supreme Court of Indiana

November 7, 1885

From the Miami Circuit Court.

Judgment affirmed.

J. L. Farrar, J. Farrar, J. T. Cox, J. M. Brown and N. N. Antrim, for appellant.

E. T. Reasoner, R. P. Effinger and R. J. Loveland, for appellee.

OPINION

Elliott, J.

The appellant contends that the trial court erred in taxing costs against him. In our opinion the record does not affirmatively show any error.

The first paragraph of the appellant's complaint counts upon a contract, and it may be that the court rendered judgment upon that paragraph, and, as the amount of the recovery was only five dollars, it was proper to tax the appellant with costs. There is nothing in the record showing that the recovery was not based on the first paragraph of the complaint, and we must presume that the court did base its action upon that paragraph. It is a familiar rule that a party who alleges error must present a record affirmatively showing it, for otherwise all reasonable presumptions will be made in favor of the proceedings of the trial court.

The evidence is not in the record, and in its absence we can not say that the recovery was not upon the paragraph counting on a contract.

There are some answers to interrogatories which tend to show that the verdict was founded on the paragraph sounding in tort, but they by no means cover the entire case, and we can not overthrow the ruling of the court upon them. They are not sufficient to control the general verdict, nor are they sufficient to repel the presumption in favor of the ruling of the trial court.

Judgment affirmed.