Opinion
No. 12,164.
Filed April 8, 1925.
1. APPEAL. — Ruling on motion will not be considered when motion not set out in appellant's brief. — A ruling on a motion for a continuance will not be considered on appeal where the motion is not set out in appellant's brief. p. 666.
2. APPEAL. — Ruling on motion for continuance cannot be assigned as error. — A ruling on a motion for a continuance cannot be made the basis of an assignment of error, but must be assigned as a cause for a new trial. p. 666.
3. APPEAL. — Trial court's decision of question of fact conclusive on appeal. — The decision of the trial court on all issues of fact is conclusive on appeal, and where there was conflicting evidence as to whether a certain payment was to be applied on the note sued on, the trial court's decision will not be disturbed on appeal. p. 666.
From Switzerland Circuit Court; Frank M. Long, Special Judge.
Action by W.H. Miller and Sons against George W. Miles. From a judgment for plaintiff, the defendant appeals. Affirmed.
Francis M. Griffith and George W. Miles, for appellant.
Sulzer, Bear Bear, for appellee.
Action by appellee against appellant upon a promissory note. A trial by the court resulted in a judgment in favor of appellee. The errors assigned on appeal are: overruling appellant's motion for a continuance, and overruling his motion for a new trial.
As to the first alleged error, no question is presented for the following reasons, viz.: the failure of appellant to set out said motion in his brief filed herein, and second, because it 1, 2. is now the settled law of this State that such a ruling cannot be made the basis of an independent assignment of error, but, to be available, it must be assigned as a cause for a new trial, in a motion in that behalf. Yazel v. State (1908), 170 Ind. 535, and authorities cited.
The second assigned error involves a consideration of the evidence.
The note which was the foundation of this action was executed in 1911, and indorsed thereon was a credit of $25, as having been paid thereon February 19, 1919. The president of appellee 3. company testified that this payment, which was by check of appellant, was made by appellant as a partial payment on this note; this, the appellant denied. The issue thus raised was one of fact for the trial court; its decision on all issues raised by the pleadings we cannot, upon this record, disturb. The appellant has presented no error.
Affirmed.