Aufderheide v. Heward

Hottel, ,C. J. This is an appeal from a judgment Li favor of appellee for $400, in an action brought by him on a replevin bond executed by appellants Aufderheide, trustee, and Grantham. The errors assigned and relied on for reversal by appellants are as follows: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in*overruling appellants’ first specification-to strike out certain parts of the complaint; (3) the court erred in its conclusions of law; (4) the court erred in overruling appellants’ motion for a venire de novo; (5) the court erred in overruling appellants’ motion for new trial. [288] 1. [287] The record discloses no-special finding of facts, conclusions of law, or motion for a venire de novo, and [288] hence shows nothing upon which to predicate the third and fourth assigned errors. In fact, appellants very frankly concede in their reply brief that the record is not as they would like to have it, but insist in effect that there is enough in the record to affirmatively show a verdict and judgment in excess of the penalty stated in the bond filed as an exhibit with the complaint.- In their reply brief they assert that such a judgment cannot be sustained and say in effect that this question is the only one presented by the appeal. 2. As presenting this question, appellants rely on the first and fifth assigned errors, swpra. The first presents no question. §348 Burns 1914, Acts 1911 p. 415; Hedekin Land, etc., Co. v. Campbell (1915), 184 Ind. 643, 112 N. E. 97. 3. 4. The grounds of the motion for new trial relied on and now urged as presenting such question are the fifth and seventh, viz.; (5) That the verdict of the jury is contrary to law, and (7) that the jury erred in the assessment of the amount'of recovery, it being too large. These grounds of appellants’ motion are of no avail because the record contains no bill of exceptions. Every presumption is indulged in favor of the judgment of the trial .court. McCutchen v. McCutchen (1895), 141 Ind. 697, 41 N. E. 324; Eastman v. Smith (1914), 56 Ind. App. 621, 105 N. E. 64. 5. As the record comes to us the fact that the penalty stated in the bond filed as an exhibit with the complaint was for only $200 is not of controlling influence. This may be the result of an error in copying the bond but, whether this be so or not, if in fact the bond offered and read in evidence was for a different amount, viz., an amount within the verdict, the com [289] plaint and exhibit could have been amended below to correspond with the proof, and hence must now be deemed to have been so amended. §401 Burns 1914, §892 R. S. 1881; Perdue v. Aldridge (1862), 19 Ind. 290; Hobbs v. Cowden (1863),) 20 Ind. 310; Helms v. Appleton (1908), 43 Ind. App. 482, 489, 85 N. E. 733, 86 N. E. 1023; White v. Stellwagon (1876), 54 Ind. 186; McKinney v. State, ex rel. (1888), 117 Ind. 26, 30, 19 N. E. 613; Ke-tuc-e-mun-guah v. McClure (1890), 122 Ind. 541, 23 N. E. 1080, 7 L. R. A. 782. 6. 7. The mere fact that the verdict is for an amount greater than asked in the complaint would not be available as a ground of a motion for new trial if in fact the evidence given upon the trial entitled appellee to the amount found by the verdict. McKinney v. State, ex rel., supra; Noyes Carriage Co. v. Robbins (1903), 31 Ind. App. 300, 67 N. E. 959. The evidence not being in the record, we must assume in favor of the verdict and judgment below that they are in accord with the evidence given in the case, and hence no question is presented by either said fifth or seventh grounds of appellants’ motion for new trial. Helms v. Appleton, supra; Shigley v. Snyder (1874), 45 Ind. 541; Sidener v. Davis (1879), 69 Ind. 336; Cosgrove v. Cosby (1882), 86 Ind. 511; Winchel v. Howard (1881), 76 Ind. 379; Borchus v. Huntington Building, etc., Assn. (1884), 97 Ind. 180. The judgment below is therefore affirmed. Note. — Reported in 117 N. E. 212.