Hopkins v. Dreyer

Enloe, J. This was an action by appellee to recover damages for fraud and deceit alleged to have been practiced upon her, by appellants, in the purchase by her bf certain property from the appellants. To a complaint in one paragraph, the appellants answered by a general denial, and the issue thus formed was submitted to a jury for trial and resulted in a verdict for the appellee, upon which judgment was rendered. Appellants’ motion for a new trial having been overruled, they now prosecute this appeal and assign as error the overruling of their said motion. At the time said motion was overruled, the appellants did not ask for and obtain time beyond the term within which to tender their bill of exceptions on the evidence, and their said bill of exceptions, not having been filed before the close of the term at [435] which, said motion was overruled, is not therefore in the record. Tozer, Admr., v. Estate of Hobbs (1923), 79 Ind. App. 258, 137 N. E. 715. The questions therefore, which appellants attempt to present which depend upon the evidence cannot be considered. The appellants complain of certain instructions given by the court of its own motion. Each of the instructions so challenged is addressed to some fact or facts within the issues as made by the pleadings, and, in the absence of the evidence, we cannot say that the court committed error in the giving of any of said instructions. We must presume in favor of the trial court and that the evidence was such as to warrant the giving of each instruction complained of by appellants. Sherman v. Indianapolis Traction, etc., Co. (1911), 48 Ind. App. 623, 96 N. E. 473. The appellants also complain of the action of the trial court in refusing to give certain requested instructions. Here again we must presume in favor of the action of the trial court, and that such requested instructions, even though they were each and severally correct statements of propositions of law, were not applicable to the evidence, and were, therefore,-correctly refused. Jenkins v. Wilson (1895), 140 Ind. 544; Holland v. State (1892), 131 Ind. 568. The appellants assigned as one of the causes for a new trial the action of the court in overruling their motion to strike.out certain designated parts of the complaint, and they have tried to present this matter as being error. Such matter is not a cause for a new trial under our statute, and therefore no question as to this matter is presented. Ward v. Bateman (1870), 34 Ind. 110; Milliken v. Ham (1871), 36 Ind. 166. No error has been presented, and the judgment is therefore affirmed.