Stalker v. Baptist Church in New Providence (Borden)
| Decision Date | 17 May 1963 |
| Docket Number | No. 19870,19870 |
| Citation | 190 N.E.2d 426,135 Ind.App. 117 |
| Parties | James B. STALKER, Jr., et al., Appellants, v. BAPTIST CHURCH IN NEW PROVIDENCE (BORDEN), Indiana, et al., Appellees. |
| Court | Indiana Appellate Court |
Metford & Hensley, Madison, Baker & Orbison, Indianapolis, for appellants.
Owen Voigt, Juffersonville, Orbison, Rudy & O'Connor, New Albany, Cooper, Cooper, & Cox, Madison, for appellees.
This matter is now before us on the appellees' motion to dismiss or in the alternative to affirm.
It affirmatively appears from the record and the appellants' brief now before us that this is an appeal from a judgment by the Jefferson Circuit Court against the appellants, James B. Stalker, Jr., et al., plaintiffs below, in an action commenced in the Clark Circuit Court to resist the probate of the purported last will and testament of one John M. Stalker.
It also appears that the appellants properly filed a motion for a new trial before the trial court setting out nine specifications in their said motion. In their brief now before us they voluntarily waive all of said specifications with the exception of the two which aver, in substance, that the finding and/or decision of the court is not sustained by sufficient evidence and is contrary to law. The error assigned by the appellants is that the trial court erred in overruling appellants' motion for a new trial.
It is the appellees' contention in their motion to dismiss or affirm that the appellants having filed only plaintiffs' exhibit A of the evidence as their bill of exceptions as shown in the transcript of record, presents no question for our consideration. The appellees move the court to dismiss this appeal, or in the alternative to affirm the judgment of the Jefferson Circuit Court.
It is the general rule of law that where the assignment of error is that the verdict or judgment is not sustained by sufficient evidence presents no question for review where the verdict or judgment is negative. The rule is well stated in the case of Hinds, Executor, etc. v. McNair et al. (1955) 235 Ind. 34, p. 41, 129 N.E.2d 553, p. 558, wherein our Supreme Court stated:
'We have repeatedly held that such assignment of error presents no question for review where the verdict is negative. Capes v. Barger, 1953, 123 Ind.App. 212, 109 N.E.2d 725; McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 51 N.E.2d 474. However, a negative verdict may be attacked under the second specification, namely, the verdict of the jury is contrary to law. Wilson [Admx.] v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905.
'If the undisputed evidence entitles the one who has the burden of proof to a verdict which has been denied him, such verdict is contrary to law. To determine this question we may consider only the evidence most favorable to the appellees, together with all reasonable inferences which may be drawn therefrom.
"It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of ...
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Shigley v. Whitlock
...in the record. Kujaca v. Kujaca (1973), Ind.App., 304 N.E.2d 870. This court held, in the case of Stalker et al. v. Baptist Church etc. et al. (1963), 135 Ind.App. 117, 120, 190 N.E.2d 426 as 'Under the foregoing authority, we are of the opinion that it was incumbent upon the appellants to ......
- Grusd v. Grusd, 19691