Kernodle v. Gibson

Citation17 N.E. 99,114 Ind. 451
PartiesKernodle v. Gibson.
Decision Date10 May 1888
CourtSupreme Court of Indiana

114 Ind. 451
17 N.E. 99

Kernodle
v.
Gibson.

Supreme Court of Indiana.

May 10, 1888.


Appeal from circuit court, Boone county; Thomas J. Terhune, Judge.

Action by John W. Kernodle on a promissory note, against George W. Gibson and John McLean. Defendant Gibson alone appeared. Jury trial, and verdict for defendant. Plaintiff appealed.

[17 N.E. 100]


Julian & Julian, for appellant. W. J. Darnell and C. S. Wesner, for appellee.

Howk, J.

This was a suit by appellant Kernodle, as plaintiff, against appellee Gibson and one John McLean, as defendants. Plaintiff's complaint counted upon a promissory note for $1,000, alleged to have been executed by the defendants on the 12th day of February, 1871, to the plaintiff herein, and to have been payable 10 months after the date thereof, with 10 per cent. interest thereon from date, and with reasonable attorney's fees if suit should be brought thereon. It was averred in the complaint, among other things, that the note in suit was “so mutilated and partially lost as to be impossible of copy.” Defendant Gibson alone appeared, and separately answered in four paragraphs, of which the first three stated special defenses, and the fourth paragraph was a general denial of the complaint. Plaintiff replied by a general denial of the special defenses. The issues joined were tried by a jury, and a verdict was returned for defendant, and over plaintiff's motion for a new trial the court adjudged that he take nothing by his suit herein, and that defendant recover his costs, etc.

The only error properly assigned here by plaintiff is the overruling of his motion for a new trial. He has also assigned here as errors several matters which would have constituted proper causes for a new trial. If these matters were assigned as causes for a new trial, in plaintiff's motion therefor, they are properly presented for our consideration by the error predicated upon the overruling of such motion; and if they were not so assigned, it is useless to assign them here as errors, because this court will not consider causes for a new trial which have not been presented to and considered by the trial court. Walls v. Railroad Co., 60 Ind. 56;Bake v. Smiley, 84 Ind. 212;Todd v. Jackson, 75 Ind. 272. The evidence is not in the record, and it does not appear that plaintiff attempted even to make the evidence a part of the record. In the absence of the evidence, we cannot reverse the judgment for the alleged error of the court below in overruling plaintiff's motion for a...

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