Regina Co. v. Galloway

• Decision Date: 03 April 1912
• Docket Number: No. 7,547.,7,547.
• Citation: 50 Ind.App. 92,98 N.E. 81
• Parties: REGINA CO. v. GALLOWAY.
• Court: Indiana Appellate Court

50 Ind.App. 92

98 N.E. 81

REGINA CO.

v.GALLOWAY.

No. 7,547.

Appellate Court of Indiana, Division No. 2.

April 3, 1912.

Appeal from Circuit Court, Greene County; C. E. Henderson, Judge.

Action by the Regina Company against John W. Galloway. From a judgment for defendant, plaintiff appeals. Affirmed.

Daniel W. McIntosh and Theo. E. Slinkard, for appellant. Oscar E. Bland and Henry W. Moore, for appellee.

IBACH, P. J.

Appellant sued appellee before a justice of the peace on four notes for $25 each, interest and attorney's fees. Appellee filed a counterclaim, in which he pleaded that the notes were given as part of the purchase price of a musical instrument called a concerto; that appellant had warranted the mechanical construction and durability of the machine for one year from the date of sale; that this warranty had failed; that appellee had already paid $275 for the concerto, and had on his hands a worthless machine, and was greatly damaged by the breach of warranty. He demanded judgment for $200 on his counterclaim, and obtained such judgment. Appellant appealed to the circuit court, and there appellee again recovered judgment for $200.

[1] One R. A. Mitchell was permitted to testify at some length, and at the close of his testimony appellant's counsel objected, for the first time, to the whole of his testimony, giving his reasons, and, upon his objection being overruled, he moved to strike out such testimony for the same reasons, which motion the court overruled. These rulings of the court are assigned as error.

The rulings were correct. “For evidence first taken at the trial, the objection to a fact or group of facts must be taken at the moment after the offeror has uttered his question or otherwise made his offer of the fact, except that, where the ground of the objection is found only in some feature of a witness' answer which could not have been relied upon until the answer was made, the objection may and must be made immediately after the answer.” Wigmore, Pocket Code of Evidence, § 74. See, also, Crabs v. Nickle, 5 Ind. 145;Darnall v. Hazlett, 11 Ind. 494;Newlon v. Tyner, 128 Ind. 466, 27 N. E. 168, 28 N. E. 59;Cleveland, etc., R. Co. v. Wynant, 134 Ind. 681, 34 N. E. 569;Swygart v. Willard, 166 Ind. 25, 76 N. E. 755; Ewbank's Ind. Trial Evidence, § 258, and cases cited. It is not error to overrule a motion to strike out testimony when such testimony has been admitted without proper objection, if opportunity for objection has been offered. Newlon v. Tyner, supra; Cleveland, etc., R. Co. v. Wynant, supra; Wysor Land Co. v. Jones, 24 Ind. App. 458, 56 N. E. 46; Ewbank's Indiana Trial Ev. § 258, and cases cited; cases cited under section 91, “Trial,” 9 Indiana Digest, p. 682.

Appellant moved in arrest of the judgment on the ground that the justice did not have jurisdiction of the subject-matter, and, as he had no jurisdiction, the circuit court could acquire none. This motion was overruled, and it is urged that such ruling was erroneous.

[2] Where a set-off or counterclaim for unliquidated damages is pleaded, the justice has jurisdiction, if the defendant, after crediting the plaintiff's demand, does not claim more than $200; the jurisdiction in such cases being determined by the damages claimed. Sections 1721 and 1782, Burns' Statutes 1908; Alexander v. Peck, 5 Blackf. 308;Gharkey v. Halstead, 1 Ind. 389;Murphy v. Evans, 11 Ind. 517;Pate v. Shafer, 19 Ind. 173;Elgin v. Mathis, 9 Ind. App. 279, 36 N. E. 650;Decker v. Graves, 10 Ind. App. 25, 37 N. E. 550;Broderick v....