Molsberger v. Lapierre , 86 Ind. App. 352 ( 1927 )

This is an action by appellee to recover from appellants the balance on an account, and also commissions on sales of real estate made by appellee as appellants' agent.

Appellee alleged that appellants were indebted to him in the sum of $537.50 on an account for printing posters, circulars, etc., and also for $130 commissions on sales of real estate. Appellee also claimed $210.13 due him as interest, making a total of $878.13, for which amount and for costs, he demanded judgment.

Issue being joined, the cause was submitted to the court for trial and resulted in a finding and judgment in favor of appellee for the sum of $666.50.

Appellants' motion for a new trial on the grounds: (a) That the decision of the court was not sustained by sufficient evidence; and (b) that the decision of the court was contrary to law, was overruled, and this appeal is taken, based on said ruling.

For a reversal of this case, the appellants rely upon the alleged error of the court in overruling the motion for a new trial.

Appellants concede that appellee was entitled to a judgment in his favor, and on this appeal seek to question only the amount thereof as being too large.

Before a question can be considered on appeal, it must first have been presented to and passed upon by the trial court. Appellants, in their motion for a new trial, did not present any question as to the amount of recovery, and for that reason it cannot now be considered here. See Central Business Men's Assn. v. Matthews (1924), 82 Ind. App. 550, 143 N.E. 885; Davis v.Montgomery (1890), 123 Ind. 587, 24 N.E. 367. However, aside from the question as to the amount of recovery not having been presented, we find that there is evidence to sustain the decision of the lower court.

Affirmed.

Dausman, J., absent.