Pemberton v. Johnson

• Decision Date: 06 March 1888
• Docket Number: 13,061
• Parties: Pemberton et al. v. Johnson
• Court: Indiana Supreme Court

15 N.E. 801

113 Ind. 538

Pemberton et al. v. Johnson

No. 13,061

Supreme Court of Indiana

March 6, 1888

From the Grant Circuit Court.

Judgment affirmed, with costs.

A Steele, R. T. St. John, A. E. Steele, R. G. Steele, J. A Kersey and L. D. Baldwin, for appellants.

G. W Harvey, for appellee.

OPINION

Zollars, J.

Appellee brought this action to recover a judgment upon a promissory note, and to foreclose a mortgage given to secure its payment.

The note was executed by appellant Elihu W. Pemberton. The mortgage was executed by him and his wife, and co-appellant, Arcadia Pemberton, upon real estate which he then owned. Subsequently the real estate was conveyed to the wife in payment of a debt which the husband owed her.

The overruling of appellants' motion for a new trial is assigned as error.

It is contended by appellants that the finding and judgment of the court below are not sustained by sufficient evidence and are contrary to law. The claim on their part is, that the note was given for a greater amount than was due from Elihu W. Pemberton to appellee; that the amount was increased by adding thereto usurious interest for four years in advance, and that appellants should have credit for a payment of $ 350, which the court below, as it is claimed, did not allow.

These claims were, and are, combated by appellee. It is well settled that this court can not reverse a judgment because, apparently, the preponderance of the evidence is against it. When it is ascertained that there is evidence tending to sustain the finding and judgment below upon every material issue, the duty of this court in that regard is at an end. The court below heard all of the evidence, had the parties before it, and settled the conflict in the evidence by its finding and judgment.

The judgment is much less than appellee claimed, and more than appellants claim that it should be. By just what process of calculation the court arrived at the amount of the judgment we are not informed, but, as the evidence is conflicting, we must assume that the court reached a just and proper conclusion.

Appellants further contend that a new trial should have been granted on account of newly discovered evidence. The difficulty with that claim is, that proper diligence to discover the evidence before the trial was not shown. The statement in the affidavit of appellant Arcadia Pemberton is, that "she and her husband made inquiries...