Moellering v. Evans

Decision Date26 November 1889
Citation22 N.E. 989,121 Ind. 195
PartiesMoellering v. Evans.
CourtIndiana Supreme Court

121 Ind. 195
22 N.E. 989


Supreme Court of Indiana.

Nov. 26, 1889.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Action by Edwin Evans against William Moellering for damages for removing the lateral support to plaintiff's land. Judgment for plaintiff. Defendant appeals.

T. E. Ellison, for appellant. Bell & Morris, for appellee.

Olds, J.

This is an action by the appellee against the appellant for damages caused to certain lots owned by the appellee by reason of the excavation of the lands adjacent thereto by the appellant, permitting appellee's lots to cave, and causing the destruction of his fences and barn upon the lots, and greatly depreciating the value of the lots. Issue was joined on the complaint by general denial, and a trial had, resulting in a verdict and judgment in favor of appellee against the appellant for $300. There was a motion for new trial by the appellant overruled, and exceptions, and the ruling is assigned as error.

The first error presented and discussed is sustaining an objection to a question propounded to appellee while testifying as a witness in his own behalf. The appellee was recalled as a witness, and was asked on examination in chief, and testified, as to date he had sold one of the lots, that he sold it in October, 1886, and that the principal part of the earth which had caved or slipped off from the lot had slipped off before he sold the lot; that a large quantity of the dirt right under the stable dropped off or fell off. During the course of the cross-examination the counsel for appellant put the following question to the witness: “Don't you know that could be filled in there for 25 cents a yard?” There was an objection to the question, and the objection sustained, and exceptions taken at the time. There was no error in this ruling. The witness was recalled to fix the date of the sale of the lot, and to testify as to whether the injury to the lot had occurred before or after the sale. The witness had not testified on such examination as to the amount of earth which had slid off prior to the sale, nor as to the amount of the damage done. The witness had been upon the witness stand, and been examined in chief, and fully cross-examined, and was recalled to testify to those particular facts, and it was proper to limit the cross-examination to the particular matter testified to by the witness when recalled, and the question propounded did not relate to and was not germane to the matter of which the...

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