Parrott v. Richardson

Monks, J. Appellant sued appellee to recover a personal judgment against him for purchase money alleged to be due on the real estate described in the complaint, and to enforce an equitable lien therefor against said land. The case was tried by the court, and a general finding made in favor of appellee, and over a motion for a new trial judgment was rendered against appellant: The only error assigned calls in question the action of the court in overruling appelant’s motion for a new trial. The first, second, and third'causes for a new trial,present the question of the sufficiency of th'e evidence to sustain the [456] decision of the court, and whether the same is contrary to law. It is not claimed that there was not sufficient evidence, if true, to fully sustain the finding of the court, but the weight thereof and the credibility of the witnesses are argued by counsel for appellant in their brief. There was legal evidence which fully sustained the finding of the court, and, although there was evidence to the contrary, we cannot, under the well settled rule, disturb the finding of the court or verdict of a jury under such circumstances. Schmidt v. Zahrndt, 148 Ind. 447, 457; Hoskinson v. Cavender, 143 Ind. 1, 2; Ewbank’s Manual, §46, p. 69; 2 Woollen’s Tr. Proc. §4385. The fourth cause assigned for a new trial is newly discovered evidence. No question is presented for our determination by said specification, for the reason that the affidavits filed in support thereof are not made a part of the record by a bill of exceptions or order of court. Heltonville, etc., Co. v. Fields, 138 Ind. 58, 66, 67, and cases cited; Hoskinson v. Cavender, 143 Ind. 1, and cases cited; 2 Woollen’s Tr. Proc. §4430, and cases cited. Finding no error in the record the judgment is affirmed.