Public-domain · open source
OpenJurist

140 Ind. 481

Lawrence v. Van Buskirk

Indiana Supreme Court

Decided March 19, 1895

Indiana Supreme Court · decided 1895-03-19

<p>Supreme Court Practice. — Waiver of Error. — Error assigned but not discussed is waived.</p> <p>Same. — Weight of Evidence. — If there is any evidence to sustain the verdict, the Supreme Court will not reverse the judgment on the' weight of the evidence.</p> <p>Instructions to Jury. — Joint Assignment. — When Unavailing. — An assignment of error that “The court erred in giving instructions 1, 2, 8, 4 asked by the defendant,” is unavailing unless all of such instructions are erroneous.</p>

Cited by 24 later decisions — most recently April 1906

24 state decisions

Relies on Cleveland, Columbus, Cincinnati & Indianapolis Railway Co v. Wynant · Ohio & Mississippi Railway Co. v. McCartney · Cargar v. Fee

Good law ✅— No negative treatment on recordhow we know

Decided 1895-03-19

View the full empirical analysis of this case →

Monks, J.

¶1— Appellants brought this action against appellees, Van Buskirk and Wood, to recover damages for the alleged wrongful conversion of 3,147 bushels of wheat, the property of appellants.

¶2*482Appellee Van Buskirk filed an answer in three paragraphs, to the second paragraph of which appellants filed a demurrer, which was overruled and exception reserved. A reply being filed, the cause was tried by a jury, and a verdict returned in favor of appellants against Wood, and in favor of Van Buskirk against appellants.

¶3Appellants filed a motion for a new trial, which was overruled and judgment rendered on the verdict.

¶4The errors assigned call in question:

¶5First. The action of the court in overruling the demurrer to the second paragraph of the answer of Van Buskirk.

¶6Second. Overruling the motion for a new trial.

¶7Appellants have waived the first error assigned by failing to discuss the same. Dowell v. Talbot Paving Co., 138 Ind. 675; Hughes v. Hughes, 139 Ind. 474.

¶8All the causes assigned for a new trial except the first and fourth are waived for the same reason.

¶9The fourth cause assigned for a new trial was that "The court erred in giving instructions 1, 2, 3 and 4, asked by the defendant.”

¶10To render this available as cause for a new trial, all the instructions named must be incorrect. Under this assignment, appellant assails the third instruction, and urges that the second and fourth are open to the same objection. It is not claimed by appellants in their brief that there was any error in giving the first instruction named. No objection is made to the same, and we can see none.,

¶11For this reason the motion for a new trial for this cause must fail. Ohio, etc., R. W. Co. v. McCartney, 121 Ind. 385, and authorities there cited; Cargar v. Fee, 140 Ind. 572; Indiana, etc., R. W. Co. v. Snyder, 140 Ind. 746.

*483Filed March 19, 1895

¶12The remaining cause assigned for a new trial was that “The verdict of the jury was not sustained by sufficient evidence.”

¶13Although the evidence is conflicting, yet there is evidence which supports the verdict on every material point. The rule is firmly settled that if there is any evidence to sustain the verdict, this court will not reverse the case on the weight of the evidence. The reasons for this rule of practice are so familiar that it is not necessary to repeat them. Cleveland, etc., R. W. Co. v. Wynant, 134 Ind. 681, and authorities cited on pp. 683, 684.

¶14There is no available error in the record.

¶15Judgment affirmed.

/140/ind/481 · .json · Public domain