Suit v. Hershman

• Decision Date: 11 January 1918
• Docket Number: No. 9497.,9497.
• Citation: 118 N.E. 310,66 Ind.App. 388
• Parties: SUIT v. HERSHMAN et al.
• Court: Indiana Appellate Court

66 Ind.App. 388

118 N.E. 310

SUIT

v.HERSHMAN et al.

No. 9497.

Appellate Court of Indiana, Division No. 1.

Jan. 11, 1918.

Appeal from Circuit Court, Hamilton County; Meade Vestal, Judge.

Action by William H. Hershman and another against Thomas A. Suit. From a judgment for plaintiffs, defendant appeals. Affirmed.

Ralph K. Kane and Thos. E. Kane, both of Noblesville, for appellant. Roscoe R. Foland and Joel Stafford, both of Noblesville, for appellees.

BATMAN, P. J.

[1] Appellees filed their complaint against appellant, in which they alleged that they are the owners of the east half of the northwest quarter of section 15, township 20 north, range 3 east, except 50 acres off the north end thereof, and 30 acres off the south end thereof, and asked judgment for possession, and damages. Appellantanswered by a general denial. Trial was had by the court, and judgment was rendered in favor of appellees. Appellant filed a motion for a new trial, alleging that the decision of the court is not sustained by sufficient evidence and is contrary to law. This motion was overruled, and the action of the court in overruling the same is the sole error assigned and relied on for reversal. In determining the question raised by appellant under this assigned error, it is only necessary for this court to determine whether there is any evidence which tends to support the decision of the trial court, and, if there is such evidence, the judgment, under the well-established rule, will not be disturbed on appeal. Timm v. Low (1913) 56 Ind. App. 47, 104 N. E. 870;Illinois Surety Co. v. Frankfort Heating Co. (1912) 178 Ind. 208, 97 N. E. 158;Indianapolis Foundry Co. v. Lackey (1912) 51 Ind. App. 175, 97 N. E. 349.

[2][3][4] The evidence discloses that appellees at one time owned all of the east half of said quarter section; that they sold two tracts therefrom; the first, described as 30 acres off the south end thereof, was sold to one Burton, from whom appellant obtained title through sundry conveyances; the second, described as 50 acres off the north end thereof, was sold to appellant. The dispute arises over a narrow strip of land between said tracts, containing about seven-tenths of an acre. Appellant's first contention is that the burden of proof was on appellees to show title and right of possession in themselves, regardless of any title in appellant; that they offered no evidence of title by adverse possession, but relied solely on the introduction of an abstract of title for the discharge of such burden; that such abstract was not evidence of title, and hence there was no evidence on which they could recover. The record shows that the abstract in question was furnished by appellees in response to an order of court, made on motion of appellant, and afterwards introduced in evidence on the trial by appellees, without objections. Abstracts of title under some circumstances are competent evidence for certain purposes. Hitt v. Carr (1915) 109 N. E. 456;Kane v. Rippy, 22 Or. 296, 25 Pac. 180. But we are not called upon in this case to determine whether the circumstances and purpose were such as to render the abstract admissible over proper and timely objections. Such question was not saved on the trial and is therefore waived. We are only called upon to determine its effect when admitted in evidence without objection. It is well settled in this state that a party who permits evidence on a material issue to be introduced without objection cannot successfully urge on appeal that it is not sufficient to sustain the finding. Its probative value, then so admitted, is for the court or jury trying the issue of fact, although such evidence might have been excluded if proper and timely objection had been made. Riehl v. Evansville, etc., Ass'n (1885) 104 Ind. 70, 3 N. E. 633;Metropolitan Life Ins. Co. v. Lyons (1912) 50 Ind. App. 534, 98 N. E. 824;Wagner v. Meyer (1912) 53 Ind. App. 223, 101 N. E. 397;Butts v. Warren Mach. Co. (1913) 55 Ind. App. 347, 103 N. E. 812. The rule stated has been applied to both hearsay and secondary evidence, as well as to evidence rendered incompetent for other reasons, as indicated by the cases cited. Under this rule we cannot hold that the trial court was not authorized to consider such abstract in determining whether appellees were the owners of the real estate in question or that it does not tend to sustain its decision. Moreover, there was...