Robinson v. Ferrier

Best, C. The appellants brought this suit, against the appellees to subject a life annuity due from William Chout to David Ferrier, to the payment of a judgment recovered by [507] the Farmers Bank of Frankfort, Indiana, against David and James Ferrier, and which had been assigned to the appellants. Opinion filed at the November term, 1881. Petition for a rehearing overruled at the May term, 1882. David and James Ferrier joined in an answer of two paragraphs. The first was a general denial, and in the other they answered that on the 9th day of September, 1879, they conveyed eighty acres of land to the appellants — forty acres to each of them — in part consideration of which they agreed to pay said judgment, and afterwards they did pay the same to the Farmers Bank of Frankfort, Indiana, but caused it to be assigned to them. • ' • A reply in denial was filed. The issues were tried by the court and a judgment, over a motion for a new trial, was rendered for the appellees. The appellants appeal and assign as error the order of the court in overruling their motion for a new trial. The only reason embraced in the motion for a new trial was that the finding was not supported by sufficient evidence. There was no dispute about the judgment nor its assignment. The only dispute was whether the appellants had agreed to pay the judgment in part payment of the land which the appellees had conveyed to them. Upon this question of fact the testimony was conflicting. At least two witnesses testified that appellants had agreed to pay the judgment, while the appellants denied any such undertaking. Under these circumstances we can not disturb the judgment. The well established rule of this court, supported by a long and unbroken line of decisions, is not to disturb a judgment upon the mere weight of the evidence. Simpson v. Payne, 58 Ind. 431. There is no error in the record, and the judgment should be affirmed. Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things affirmed, at the appellants’ costs.