Rowe v. Johnson, 28073.

• Decision Date: 18 April 1945
• Docket Number: No. 28073.,28073.
• Parties: ROWE v. JOHNSON et al.
• Court: Indiana Supreme Court

223 Ind. 289

60 N.E.2d 529

ROWE

v.JOHNSON et al.

No. 28073.

Supreme Court of Indiana.

April 18, 1945.

Action by Dayton Rowe against Roy D. Johnson and another, involving title to, or interest in, a portion of a note and mortgage. Judgment for defendants, and plaintiff appeals.

Affirmed.Appeal from Steuben Circuit Court; Clyde C. Carlin, Judge.

Edgar W. Atkinson and Hugh G. Sanders, both of Auburn, for appellant.

Mountz & Mountz, of Garrett, for appellees.

O'MALLEY, Chief Justice.

The appellant filed a complaint in the DeKalb Circuit Court wherein he alleged that on the 20th day of February, 1932, he was the owner of an undivided one-fourth interest in a forty acre tract of land located in DeKalb County; that on said date he and his co-tenants (his borthers and sisters) and their spouses conveyed said forty acres to Estel R. Shippy and Edna M. Shippy at the agreed price of $1600; that the purchase price was paid, part in cash and part by a note secured by a mortgage; that the note and mortgage were made payable to all co-tenants and that at a later date the appellees induced the said Shippys to give a new note and mortgage payable to the appellee, Daisy Johnson; that the new note and mortgage were substituted for the original ones and that the appellees afterward collected said note, kept the funds secured therefrom, and refused to pay the one-fourth thereof to appellant.

To this complaint there was filed an answer in three paragraphs. The first was in effect a denial of each fact in each rhetorical paragraph. The second and third paragraphs each alleged the six year statute of limitations. The reply to the second and third paragraphs is not set out, and may not have been filed. There was a change of venue and this cause was sent to Steuben County where trial was had before a jury.

The only questions briefed are that the verdict is not sustained by sufficient evidence and that it is contrary to law.

Since the verdict was for the defendant and against the plaintiff, who had the burden of proof, the verdict does not rest upon the quantum of evidence. A total lack of evidence would force a verdict or decision against the one who had the burden. Therefore, no question is raised by claiming that there was insufficient evidence. Wilson, Adm'x v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905.

The only question which must be answered is whether or not the verdict was contrary to law. In answering this question we must consider only the evidence most favorable to the appellees, together with all reasonable inferences to be drawn therefrom. Craig, Ex'x v. Citizens Trust Company, 1940, 217 Ind. 434, 26 N.E.2d 1006.

It is only ‘Where the evidence is without conflict and leads to but one reasonable conclusion and the trial court has reached a contrary conclusion’, that the verdict or decision will be...