Shuman v. Hauk

Cooper, J. — This is an appeal from the Superior Court of Marion County, wherein the Appellee brought an action [221] against the Appellants for damages alleged to have been caused by breach of contract. After the issues were properly closed, the cause was submitted to the court for trial. The court found for the Appellee and entered judgment accordingly. The record before us reveals that thereafter the Appellants filed their Motion for a New Trial, which said Motion was overruled by the trial court. The ruling on the Motion For New Trial is the assigned error on appeal. The Motion for New Trial alleges as error the following: (1) That the judgment in this matter is contrary to law; (2) That the evidence in the cause does not support the decision of the Court; and (3) That the defendants have newly discovered evidence which was not available to them at the time of the trial of this cause. No other grounds for a new trial were specified. The rule is well established by numerous decisions of our Supreme Court and this Court that the specification of error that the judgment is contrary to law, presents no question, either to the trial court, or to this court on appeal, since the statute does not recognize such a cause for new trial. Watson v. Watson (1957), 127 Ind. App. 591, 144 N. E. 2d 529, and authorities cited therein. The same is true of the Appellants’ second specification of error. In Volume 4 of Lowe’s Revision of Works’ Indiana Practice, Sec. 61.85, page 73, we find the following statement: “No question can be presented on appeal as to the sufficiency of the evidence unless its insufficiency was assigned as a cause for a new trial.” See also, Warren v. State Farm Mutual Auto Ins. Co. (1964), 136 Ind. App. 444, 4 Ind. Dec. 164, 202 N. E. 2d 170; Sikes v. Lefton (1960), 130 Ind. App. 620, 166 N. E. 2d 652. [221] The foregoing is also true as concerns Appellants’ third specification for a new trial, since application for a new [222] trial under this provision must be supported by affidavit. See Burns’ Indiana Statutes, Sec. 2-2404. Where, as was the fact in this case, no such affidavit is attached to or filed with the motion for a new trial, no question is presented regarding such asserted errors. See: Van Sickle v. Kokomo Water Works Co., 289 Ind. 612, 158 N. E. 2d 460. Since the Appellants’ Motion for New Trial presented no question to the trial court, said court committed no error in overruling said Motion, and as no other error is assigned on appeal to this court, the judgment must be affirmed. Carson, C. J., Prime, J., concur. Faulconer, J., concurs with opinion.