Mesker v. Bishop

• Decision Date: 10 June 1914
• Docket Number: No. 8100.,8100.
• Citation: 105 N.E. 644,56 Ind.App. 455
• Parties: MESKER v. BISHOP.
• Court: Indiana Appellate Court

56 Ind.App. 455

105 N.E. 644

MESKER

v.BISHOP.

No. 8100.

Appellate Court of Indiana, Division No. 1.

June 10, 1914.

On petition for rehearing. Petition overruled.

For former opinion, see 103 N. E. 492.

HOTTEL, J.

In a petition for rehearing appellant very earnestly urges that this court has overlooked some material considerations which has led it into error in its opinion.

[1] It is first insisted that the court erred in holding that no error resulted from sustaining a demurrer to its cross-complaint. We are satisfied with the conclusion reached and announced on this question in the original opinion, but we might add that we are unable to see how appellant could have been harmed by such ruling of the trial court, even if erroneous. An answer setting up substantially the same facts was very properly held sufficient against a demurrer, and appellant, by way of defense, had the full benefit of all the evidence beneficial to it that could have been admissible under its cross-complaint. The verdict of the jury was necessarily against appellant on the issue tendered by such answer and appellee's reply thereto; otherwise, there could have been no verdict in appellee's favor.

The finding by the jury against appellant on its answer would necessarily prevent it from obtaining the affirmative relief asked in its cross-complaint. This brings us to what we regard as the most serious question in the case, viz.: Was there sufficient evidence to show a consideration for the release set up in such answer? The affirmative reply to this answer averred in substance that neither at the time of its execution and delivery, nor before nor since that time, was any consideration for such release received by said Jane Bishop or Mary Dills, or either of them, from the appellant or any other person.

[2] It is very earnestly insisted by appellant that this court in the original opinion treated this question as one of the weight of the evidence, when in fact it was a question of the sufficiency of the evidence. We recognize the distinction contended for by appellant to the effect that the question of the weight of the evidence is for the jury and trial court, while its sufficiency to sustain the verdict of the jury, or the decision of the trial court, is for this court. Habbe v. Viele, 148 Ind. 116, 121, 45 N. E. 783, 47 N. E. 1;Wright v. Bertiauz, 161 Ind. 124, 129-130, 66 N. E. 900;U. S. Cement Co. v. Whitted, 46 Ind. App. 105, 107, 90 N. E. 481, and cases cited.

[3] We cannot say, however, in this case, that there was no evidence from which the jury might not have inferred that the release in question was given without consideration. The evidence on which appellant relies shows that Jane Bishop...