Sparks v. Davis , 41 Ind. 526 ( 1873 )

Downey, J.

—Complaint by the appellant against the appellees to review a judgment recovered by the appellees against the appellant. Issues were formed, there was a trial by the court, a finding for the defendants, a motion for a new trial made by the plaintiff overruled, and final judgment rendered for the defendants.

The alleged error is the overruling of the motion for a new trial.

The reasons for a new trial are as follows: first, because the finding of the court is contrary to law; second, because the finding is not sustained by sufficient evidence; third,' because the court erred in the admission of evidence against the plaintiff; fourth, because the court erred in overruling the plaintiff’s demurrer to the first, second, and third paragraphs of the defendants’ answer.

The first reason for a new trial is not relied upon. It seems to have been inserted because it is a statutory reason for a new trial, and because it would be a violation of a time-honored usage not to do so, more than for any other reason.

The second reason involves the sufficiency of the evidence. Governed by the rule which controls this court in the re-examination of questions of fact, we cannot disturb the action of the circuit court on account of the insufficiency of the evidence. There was evidence to support the finding.

The third reason is, that the court admitted evidence against the plaintiff. As there was an issue of fact to be tried by the court, we do not see the alleged impropriety in the action of the court in admitting the evidence offered by the defendants against the plaintiff. If there was any particular part of the evidence which was improperly admitted by the court, that should have been specially designated or pointed out in the reasons for a new trial.

The fourth reason for a new trial is not among those enumerated in the statute. 2 G. & H. 211, sec. 352. An error in sustaining or overruling a demurrer to a pleading is in no case a ground for a new trial. It is not an error committed on the trial. Authority on this point is surely unnecessary.

H. Craven, R. Lake, W. R. Pierse, and H. D. Thompson, for appellant. W. March, for appellees.

The judgment is affirmed, with costs.