Henry v. Adams , 126 Ind. 495 ( 1891 )

McBride, J.

— This was a suit by appellee against appellant on a note executed by appellant to one Garrison, and by Garrison endorsed to appellee, and to foreclose a mortgage executed to secure payment of the note.

There was an answer, in one paragraph, admitting the execution of the note and mortgage, pleading, as a set-off to $69.57 of the sum due on the note, a certain due bill, a note and a judgment, which together amounted to that sum, and alleging a tender of the balance due, and that the tender had been kept good, etc.

Reply in three paragraphs, the first of which is the general denial.

There was a trial by the court, a finding for plaintiff, *a motion for a new trial, which was overruled, and an exception by the appellant to this ruling, and the court rendered judgment in appellee’s favor, and a decree foreclosing the mortgage.

The only error assigned is in overruling the motion for a new trial.

The motion for a new trial is upon the ground that the decision (or verdict, appellant calls it) is not sustained by sufficient evidence, and is contrary to law. There is a bill of exceptions, which purports to set out the evidence. The correctness of the judgment depends on whether the evidence sustains the answer of set-off and tender. We have examined the bill of exceptions carefully.

It fails to show that'any evidence whatever was introduced or offered by the appellant to establish any of the items of set-off. While several of the witnesses speak of a note, of a due bill and of a judgment, there is in the record no evidence whatever establishing their existence, nor is there any stipulation or admission waiving the production of such proof. No note or due bill or judgment was put in evidence. It is possible that the bill of exceptions is incomplete, and does not contain all the evidence, but the statement in the bill is that it contains all the evidence given in the case, and, as has been held by this court, a bill of exceptions imports absolute verity.

Filed Jan. 14, 1891.

The general denial being pleaded by way of reply, the burthen was upon the appellant to establish his set-off by evidence.

Assuming, as we must, that the bill of exceptions does contain all of the evidence given in the case, we find nothing to justify us in reversing the judgment.

Judgment affirmed, with costs.