Wheeler v. Moore

Henley, J.

— This action was commenced by appellant filing his claim in the office of the clerk of the circuit court of Marion county against the estate of John "W. Axtell, of which estate the appellee, John L. Moore, was the administrator. The claim was based upon the following state of facts: Appellant had a first mortgage of $2,000, and the decedent, John W". Axtell, had a second mortgage of $500, on forty acres of land in Miami county, Ohio, which was owned by the wife of Samuel P. Axtell, a brother of the decedent. It is averred in the complaint that appellee’s decedent agreed, in consideration that the time of payment of the first mortgage should be extended, that he would pay the same. In the meantime, John W. Axtell died, and his daughter, who' was his only heir, notified appellant that she would not pay the mortgage held by him upon said land, and that he must look to the land for his money. Appellant at once began his action to foreclose his mortgage, obtained a judgment, order of sale, under which the land was sold, and purchased by appellant at his own sale for a sum of money less than the full amount of his debt, interest and costs. It is for this difference, amounting to about $600, that the claim in this action is filed. A full statement of the facts and circumstances on which appellant based his claim apxiears in the complaint. There was a trial by the court on the issues formed by the defenses which the statute interposes. There was a finding and judgment in favor of appellee. Appellant moved for a new trial, which was overruled. The only error assigned to this court is that the lower court erred in overruling appellant’s motion for a new trial. It is first contended by counsel for appellant that the finding and judgment of the lower court is not sustained by sufficient evidence. The evidence is conflicting. It is shown by the evidence that decedent refused to indorse or guarantee appellant’s claim on being requested by appellant so to do, and that decedent told appellant, upon refusing to indorse his claim, that he, appellant, had the first call on the land, and that was all the indorsement that he, decedent, would give. This is sufficient to show that there was some evidence upon the trial tending to prove that decedent never agreed to pay, or in any manner assume.the payment of appellant’s claim against Samuel P. Axtell’s land.

This court will not weigh the evidence. It is also contended that the court erred in admitting certain evidence offered by appellee on the trial. It is doubtful if this evidence has been sufficiently identified in the motion for a new trial to save the question in this court. Waiving this objection, we are of the opinion that this evidence was immaterial. Also, that appellant has waived his right to object thereto by himself introducing the same kind of evidence in chief. See Gaff v. Greer, 88 Ind. 122; Lowe v. Ryan, 94 Ind. 450; Hinton v. Whittaker, 101 Ind. 344. We find xlo error in the record. Judgment afiirmed.

Wiley, J., absent.