Kimmick v. Linn

• Decision Date: 09 October 1940
• Docket Number: 27436.
• Citation: Kimmick v. Linn, 217 Ind. 485, 29 N.E.2d 207 (Ind. 1940)
• Parties: KIMMICK et al. v. LINN et al.
• Court: Indiana Supreme Court

29 N.E.2d 207

217 Ind. 485

KIMMICK et al. v. LINN et al.

No. 27436.

Supreme Court of Indiana

October 9, 1940

Appeal from Superior Court, Marion County; Russell Ryan judge.

Todd & McCormack, of Indianapolis, for appellants.

Wm J. Fahey, of Indianapolis, for appellees.

SHAKE Judge.

The appellants were plaintiffs below and brought an action in three paragraphs against the appellees to quiet title to certain real estate.The appellees answered in general denial.There was a court trial, resulting in a judgment in favor of the appellees.This appeal is predicated upon the denial of appellants' motion for a new trial, in which it is assigned: (1) That the decision is not sustained by sufficient evidence; (2) that the decision is contrary to law; and (3) that 'the court erred in permitting the defendant, Rose Linn, to testify as to matters occurring prior to the death of Arthur F. Linn concerning the execution of a deed by said defendant to said decedent during his lifetime, and wherein the said defendant testified over objection, to the effect that she had never, during the lifetime of Arthur F. Linn, executed a deed for the property involved in this action.'Under the most favorable view the judgment of the trial court rests upon conflicting evidence and must be affirmed, unless the third assignment in the motion for a new trial presents reversible error.The first question for consideration, therefore, is whether said third assignment is sufficient to present any question with respect to the admission of testimony therein referred to.This court and the Appellate Court of Indiana have many times had occasion to consider the sufficiency of a motion for a new trial when error in the admission of evidence is relied upon.In Van Ginkle v. Mooy Ex'r,1937, 104 Ind.App. 282, 286, 10 N.E.2d 759, 761, the court said: 'Appellants next complain of error in admitting in evidence the testimony of James Mooy, Maggie Briney, and Robert Hackley, because of their incompetency to testify, but have not set out in their motion for a new trial any of the questions asked the witnesses, their objections, if any, thereto, the answer of any of said witnesses to any question propounded, or the substance thereof, the ruling of the court thereon, their exceptions thereto, their motion to strike out any of such evidence, the ruling of the court thereon, or their exceptions, if any, thereto.Therefore, the error of the court, if any, is not before us.'

More recently, this court held that: 'When error is predicated upon the admission or rejection of testimony, the motion for a new trial should set out the question and answer, if there was one, or the substance thereof.* * * The objection urged below should also be set forth, together with the ruling of the court with respect thereto * * *.This is necessary for two good reasons: (1) that the trial court may be fully apprised of the alleged error so that it may have an opportunity to correct the ruling by granting the motion if it deems it proper to do so; and (2) that this court may be able to consider the matter on appeal without being burdened to search the record for grounds to reverse.'Brown v. State,1939, Ind.Sup., 23 N.E.2d 267, 268.

It is impossible to determine from the third...