Keiser v. Beam
| Decision Date | 23 January 1889 |
| Docket Number | 12,427 |
| Citation | 19 N.E. 534,117 Ind. 31 |
| Parties | Keiser v. Beam |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
The judgment is reversed, with costs.
J Brown, W. A. Brown and E. P. Schlater, for appellant.
J. H Mellett and E. Bundy, for appellee.
The complaint in this case averred that on the 5th day of September, 1876, the Citizens' State Bank of New Castle, Indiana, recovered a judgment in the Henry Circuit Court in the sum of $ 808.80, and costs, taxed at $ 20, against John U. Keiser and the appellee upon a note executed by John U. Keiser as principal and the appellee and appellant as sureties; that at the time the judgment was rendered John U. Keiser was the owner of real estate in New Castle, Henry county, Indiana, of the value of $ 5,000, upon which the judgment became a lien; that after the judgment was rendered John U. Keiser conveyed the said real estate to the appellant, the consideration in part being the payment by him of the said judgment; that afterward the appellant procured an assignment of the judgment from the bank to himself; that he thereafter conveyed the real estate, and the judgment had been paid and satisfied. There is no charge of bad faith in the complaint.
Then follows the prayer for relief, which is, that the judgment be declared paid and satisfied.
The answer of the appellant was a general denial.
The cause was tried by a jury, a verdict returned for the appellee, and a judgment rendered declaring the original judgment paid and satisfied.
There is but one error assigned, and that is, that the court erred in overruling the appellant's motion for a new trial. It is only necessary to refer to two of the reasons embodied in the motion for a new trial.
These are the first and fourth:
The first is, that there is not sufficient evidence to sustain the verdict.
The fourth is, that the court erred in giving instruction number two.
It is a rule of this court, of long standing, that a judgment will not be reversed and a new trial granted for want of sufficient evidence, where there is some evidence tending to establish each material fact in issue.
Upon the other hand, the rule is equally well established that a judgment will be reversed and a new trial granted whenever there is an entire failure of proof as to any fact essential to the support of the action.
The gist of this action is, that after the appellant became the owner of the judgment in question, John U. Keiser paid it by conveying to the appellant certain real estate in the town of New Castle, Henry county, Indiana.
We have carefully read the evidence as copied into the record, and have failed to find any evidence to prove payment, by the conveyance of real estate or otherwise. The plaintiff's evidence in chief is in substance as follows:
The record of a judgment in favor of the Citizens' State Bank of New Castle, Indiana, against John U. Keiser, George Beam and Samuel Keiser for the amount of $ 808.80, and for costs amounting to $ 20. An agreement made on the trial that at the date of the said judgment John U. Keiser was the owner of certain real estate in New Castle upon which the judgment at once became a lien.
The record of a deed from John U. Keiser and wife to Samuel Keiser for the real estate to which the agreement referred. The consideration named in this deed is $ 4,500, and it bears date July 22, 1878, and was recorded August 22, 1879.
The record of a deed from Samuel Keiser to Mary E. Keiser for a part of the real estate that had been conveyed to Samuel by John U. Keiser and wife. The consideration named in this deed is one hundred dollars, and it bears date July 22, 1879, and was recorded Sept. 6, 1879.
The record of a deed from Samuel Keiser and wife to Robert M. Nixon. The consideration named in this deed is four thousand dollars, and it bears date January 17, 1881, and was recorded February 2, 1881.
Robert M. Nixon testified that he paid $ 4,000 for the property, $ 3,600 to Samuel Keiser, $ 90 to Mellett & Bundy on Samuel Keiser's account, $ 32 costs, and the balance to John U. Keiser.
The plaintiff having rested his case, the defendant was examined and testified as to the consideration paid by him for the conveyance from John U. Keiser and wife, and testified that the payment of the judgment in question did not enter into the consideration paid; that the consideration named in the deed was the true consideration, and was made up in the assumption and payment of liens senior to the lien of the judgment in question.
John U. Keiser testified to substantially the same facts.
In rebuttal the plaintiff introduced two witnesses to contradict John U. Keiser, and they testified that he had stated to them that the...
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