Poole v. McGahan ( 1890 )

Berkshire, J.

This is an action to declare and enforce a parol trust to certain letters patent issued to one John S. Smith. The complaint alleges that the patentee assigned the said letters patent to the appellee and that he assigned the same to the appellant; that the assignment, though absolute upon its face, was without consideration and in trust.

There was no demurrer filed to the complaint, and the answer was but the general denial.

The court tried the cause without a jury and returned a finding for the appellee.

The appellant filed a motion for a new trial, which was overruled'by the court and he reserved an exception and judgment was rendered in accordance with the finding.

Filed May 17, 1890; petition for a rehearing overruled Sept. 18, 1890.

The only specification in the assignment of error which is available to the appellánt is the second — error of the court in overruling the motion for a new trial.

The only reason found in the motion which presents any question for us to consider is the first — the finding of the-court is not supported by the evidence.

The appellee’s argument relates to the fourth cause found' in the motion — error of the court in allowing the appellee to introduce parol evidence to prove the alleged parol trust. But no question is presented by this reason, because the admitted evidence was not objected to on the trial. Judd v. Small, 107 Ind. 398; Stockwell v. State, ex rel., 101 Ind. 1; City of Evansville v. Martin, 103 Ind. 206; McFadden v. Fritz, 110 Ind. 1; Compton v. Ivey, 59 Ind. 352.

If the evidence was incompetent it' was because of its quality and not that it did not tend to prove the facts alleged in the complaint. The evidence having been admitted without objection, it was before the court for its consideration.

~We have examined the évidence and find that it supports the finding.

There is no error in the record.

Judgment affirmed, with costs.