Hudelson v. Hudelson

• Decision Date: 23 May 1905
• Docket Number: 20,547
• Citation: 74 N.E. 504,164 Ind. 694
• Parties: Hudelson et al. v. Hudelson et al
• Court: Indiana Supreme Court

74 N.E. 504

164 Ind. 694

Hudelson et al. v. Hudelson et al

No. 20,547

Supreme Court of Indiana

May 23, 1905

From Henry Circuit Court; John W. Headington, Special Judge.

Action by Emory Hudelson and others against Lennaeus L. Hudelson and others. From a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

McKee & Trabue, Forkner & Forkner and Barnard &amp Jeffrey, for appellants.

Eugene Bundy and Smith, Duncan, Hornbrook & Smith, for appellees.

Montgomery J. Gillett, J.

OPINION

Montgomery, J.

This action was brought by appellants to set aside a deed made by their father, William Hudelson, and for partition of real estate. The complaint charged unsoundness of mind and undue influence, and was answered by general denial. A trial by the court resulted in a finding for appellees. Appellants' motion for a new trial was overruled, and judgment rendered against them for costs.

The overruling of the motion for a new trial is the only alleged error assigned; and the only ground of the motion, not waived, is that the decision of the court is not sustained by sufficient evidence, and is contrary to law.

The provisions of the act of 1903 (Acts 1903, p. 338) are invoked, and we are asked to determine whether or not the judgment below is fairly supported by, or is clearly against the weight of, the evidence. The evidence relied upon for a reversal is wholly oral. More than sixty witnesses were introduced and testified, and in numbers were about equally divided between appellants and appellees. The evidence is conflicting, and the opinions of witnesses as to the mental condition of the grantor in the deed assailed are contradictory.

In the case of Toledo, etc., R. Co. v. Goddard (1865), 25 Ind. 185, the learned judge writing the opinion attempted to furnish a solution for such perplexing problems as that now confronting this court, from which we quote the following: "The general rule is that if there is evidence from which the jury might reasonably find or infer a fact, and they find accordingly, this court will not disturb the verdict because there is other evidence in conflict with that on which the finding is based. But where the evidence in support of the finding is clearly and overwhelmingly, or conclusively contradicted, it would be a reproach to the law, and a flagrant outrage upon the rights of the parties to refuse to disturb the verdict, simply because it had been found by a jury."

In the case of Ft. Wayne, etc., R. Co. v. Husselman (1878), 65 Ind. 73, 76, Howk, C. J., speaking of the language above quoted, said: "How can this court or its judges possibly know that the evidence in support of the verdict or finding has been 'clearly and overwhelmingly, or conclusively contradicted?' To arrive at such a conclusion, must we not weigh the evidence? If so, how can we, as an appellate court, by merely reading the written evidence, without any personal knowledge of the intelligence or character of the witnesses, or any of those living indicia before us by which men ordinarily judge of the truthfulness and credibility of evidence, determine that the evidence in support of the verdict or finding has been 'clearly and overwhelmingly, or conclusively contradicted?' We know of no rule or measure by which an appellate court can be safely guided, when it undertakes to determine such a question. Whether or not the evidence in any case is clear, or overwhelming, or conclusive, is a question for the jury trying the cause, and the judge presiding at such trial. When a jury have passed upon this question, and returned their verdict, and when the court, under whose eye and within whose hearing the evidence has been introduced and the cause has been tried, has refused to disturb the verdict upon the weight or sufficiency of the evidence, we are clearly of the opinion, that it is neither our province, nor our duty, to reverse the judgment of the trial court, merely because it may seem to us, from our reading of the record, that 'the evidence in support of the finding is clearly and overwhelmingly, or conclusively contradicted.'"

This court, in harmony with the decision just quoted, uniformly and consistently refused to weigh conflicting evidence up to the time of the enactment of the statute of 1903. That act has recently been construed by this court in the case of Parkison v. Thompson (1905), ante, 609. In that case the court said: "The statute must be given a reasonable construction, and no such interpretation should be placed thereon as will make the action of the legislature in enacting it appear absurd. Its language is: 'The Supreme and Appellate Courts shall * * * carefully consider and weigh the evidence.' The word 'shall' is manifestly used in the statute in the sense of 'may.' It was intended, no doubt, to abrogate the judicial rule by which we have heretofore been bound, and authorize us to weigh the evidence and decide questions of fact on appeal. But certainly the legislature in passing the act did not intend that there should be a trial de novo in this or the Appellate Court upon the evidence in the case. It was...