Opinion
No. 17,498.
Filed October 3, 1946.
1. JUDGMENT — Payment and Satisfaction — Application of Statute. — The statute providing that every indorsement of payment, satisfaction or release, in whole or in part, upon the record or margin of any judgment or decree shall operate as a satisfaction or release of such judgment or decree in favor of subsequent purchasers or lienholders in good faith, has no application in an action between an original judgment creditor and judgment debtor concerning the validity of a purported release of a default judgment wherein no rights of third persons, subsequent purchasers, or lienholders in good faith were involved, p. 13.
2. APPEAL — Evidence — Admissibility — Grounds of Objection Not Set Out in Motion for New Trial. — No question is presented to the Appellate Court concerning error in the rejection of evidence where appellant fails to assign error in the motion for new trial in the rejection of evidence and does not set forth therein the question propounded, the objection thereto, and the ruling of the court thereon. p. 14.
From the Greene Circuit Court; Karl Parker Vosloh, Judge.
Action by Virgil May against William Frederick to set aside a purported release of a default judgment which plaintiff had recovered against defendant. From a judgment declaring that such release was fraudulent and void, defendant appealed.
Affirmed. By the court in banc.
Beasley Beasley, and R.M. Vincent, all of Linton, for appellant.
Edwin B. Long, of Linton, for appellee.
This is an appeal from a judgment of the lower court declaring void and of no force and effect a purported release of a default judgment rendered against appellant and in favor of appellee in the Greene Circuit Court on March 29, 1945, in the sum of $395, which judgment was duly entered and recorded in the proper records in the clerk's office of the Greene Circuit Court.
The sole error assigned is that the court erred in overruling appellant's motion for a new trial, which contained only two specifications, to wit: (1) The decision of the court is not sustained by sufficient evidence; and (2) the decision of the court is contrary to law.
To support the first specification of the motion for a new trial, appellant relies solely upon § 2-2519, Burns' 1933, which provides in substance that every endorsement of payment, satisfaction or release, in whole or in part, upon the record or margin of any judgment or decree shall operate as a satisfaction or release of such judgment or decree in favor of subsequent purchasers or lienholders in good faith.
We are unable to see how this statute is applicable in any manner to the facts disclosed by the record in the instant case. This is an action between the original judgment creditor 1. and judgment debtor, and the rights of third persons, subsequent purchasers, or lienholders in good faith are in no manner involved. Therefore we hold that said statute has no application.
In support of the second specification of the motion for a new trial, appellant contends that the court erred in sustaining appellee's objection to certain questions propounded upon cross-examination of appellee Virgil May, while testifying as a witness.
It will be noted that the motion for a new trial contains no specification assigning error in the admission or rejection of evidence. Under the well-established rule in Indiana, no 2. question is submitted for our consideration in respect to the rejection of evidence because of appellant's failure to assign error in the motion for a new trial in the rejection of evidence and setting forth in the motion the question propounded, the objection made thereto, and the ruling of the court thereon. Golden Guernsey Farms v. State (1945), 223 Ind. 606, 63 N.E.2d 699, 702; Wise v. Curdes (1942), 219 Ind. 606, 40 N.E.2d 122; Johnnie J. Jones Exposition v. Terry (1945), 116 Ind. App. 189, 63 N.E.2d 159, 162.
Finding no error, the judgment of the lower court is hereby affirmed.
NOTE. — Reported in 68 N.E.2d 656.