Wood v. Crane

It is claimed that the circuit court erred in sustaining the demurrer to the fifth answer, and in overruling the motion of the appellants for a new trial.

The fifth paragraph of answer, which was duly verified, was to the effect that the several supposed promises and undertakings in the complaint mentioned, if any such were made, each and all were made by the defendants, not to the plaintiff, William B. Crane, but to William B. Crane and Calvin Crane, as partners, and that said Calvin is alive and a resident of the county. Wherefore, etc.

The fourth paragraph of the answer was a general denial, which put in issue the averment of the complaint, that the alleged promises and undertakings were made to the plaintiff. There was, therefore, no evidence admissible nor relief attainable under the plea in abatement, of which the appellants could not have had, and, it is to be presumed, did have, the benefit under the general denial. This was so at common law, as well as under the code. 1 Chitty’s Pleadings, side page 13, and notes.

*208The motion for a new trial is based on the alleged misconduct of the plaintiff, and surprise of the defendants, in a .number of specified particulars, and upon the alleged discovery of new evidence. In apparent support of the motion, certain affidavits have been copied into the transcript, and also counter affidavits on the same subject, hut these affidavits are not made a part of the record, either by an order of the court or by a bill of exceptions, andaré therefore not properly before us. McDaniel v. Mattingly, 72 Ind. 349 ; Elbert v. Hoby, 73 Ind. 111.

There is in the record sufficient evidence to sustain the verdict, and we are not able to say, on the proofs made, that the amount of the recovery is too great.

The judgment is affirmed, with costs.