Goldberg v. Coffman , 1921 Ind. App. LEXIS 162 ( 1921 )

Nichols, J.

Action by Philena Coffman against appellant for rents claimed to be due under the terms of a lease by her to appellant, the stipulations of which we do not need to state.

During the pendency of the action in the trial court, Philena Coffman died, and appellee as administrator with the will annexed was substituted as plaintiff. There was a trial by jury which resulted in a verdict and judgment for appellee.

1. The only error assigned is the court’s action in overruling appellant’s motion for a new trial. Appellant’s first reason presented for a new trial is that the verdict of the jury is contrary to the law and the evidence. This is not a statutory ground for a new trial and therefore presents no question. Cathcart v. Brewer (1919), 70 Ind. App. 304, 123 N. E. 358; Jennings v. Ingle (1905), 35 Ind. App. 153, 73 N. E. 945.

2. 3. Appellant’s second reason presented for a new trial is that the court erred in giving of its own motion each of certain instructions and in refusing to give certain instructions tendered. It does not appear by the record that the instructions claimed to have been given by the court of its own motion were ever signed by the judge. The provisions of the statute for identification, cl. 6, §558 Burns 1914, §533 R. S.. 1881, §561 Burns 1914, Acts 1903 p. 338, under which there was an attempt to make the instructions a part of the record are mandatory, and the failure of the judge to sign the instructions leaves no question on such instructions for this court. Grand Rapids, etc., R. Co. v. Turner (1918), 69 Ind. App. 101, 121 N. E. 295; Cleveland, etc., R. Co. v. Powers (1909), 173 Ind. 105, 123, 88 N. E. 1073, 89 N. E. 485. No question is therefore raised concerning tendered instructions, for they may have been covered by the instructions given, which are not before the court. Reynolds v. State (1897), 147 Ind. 3, 12, 46 N. E. 31; Ohio, etc., R. Co. v. Buck (1892), 130 Ind. 300, 30 N. E. 19; Shotts V. McKinney (1906), 39 Ind. App. 101, 79 N. E. 219.

4,5. The only other question presented is as to whether it was error for the court to refuse to permit appellant to answer questions concerning conversations with Ella Coffman, daughter of the decedent. Appellant, being a necessary party to the issue, was clearly precluded from testifying to such conversations by §521 Burns 1914, §498 R. S. 1881, unless he could be heard under the provisions of §523 Burns 1914, §500 R. S. 1881, upon the ground that Ella Coffman was agent of the decedent. She had testified to a conversation in the presence of the decedent. The conversations called for were not part of the conversation about which Ella Coffman had testified but were conversations which appellant claimed took place at a different time and out of the presence of the decedent, and though purporting to be on the same subject as the one given by Ella Coffman in the presence of the deceased, said witness had not testified to them. They were therefore properly excluded. Kibler, Admr., v. Potter (1894), 11 Ind. App 604, 39 N. E. 525; Guthiel v. Dow (1912), 177 Ind. 149, 157, 97 N. E. 426.

There is no reversible error. The judgment is affirmed.