Opinion
No. 17,239. (Appellate Court.)
Filed October 20, 1944.
1. COURTS — Transfer of Causes — Supreme Court to Appellate Court — Assertion That Appellate Court Weighed Evidence — No Question Presented. — An assertion on petition to transfer that the opinion of the Appellate Court contravenes a ruling precedent of the Supreme Court for the reason that the Appellate Court weighed the evidence raises no question for decision. p. 610.
2. WITNESSES — Impeachment — Effect — Evidence Not Considered as Proof of Facts in Dispute. — Impeaching evidence cannot be considered as proof of the facts in dispute between the parties. p. 611.
From the Elkhart Circuit Court; John W. Kitch, Special Judge.
Action by Myrtle Bickel against Burdette Frick, wherein judgment for plaintiff was reversed by the Appellate Court. See 115 Ind. App. ___. Thereafter, Myrtle Frick filed a petition to transfer to the Supreme Court.
Petition denied.
Wallace Mehl, of Goshen, and Arnold, Degnan, Goheen Zimmerman, of South Bend, for appellant.
Guy Dausman, of Goshen, for appellee.
In appellant's petition to transfer, two causes are given, to-wit:
1. That the opinion of the Appellate Court contravenes a ruling precedent of the Supreme 1. Court for the reason that the Appellate Court weighed the evidence.
2. That the opinion decides a new question of law erroneously when it states that evidence adduced on cross-examination to the effect that the witness made statements outside of court contrary to his statements on the witness stand, may not be considered as substantive evidence and proof of the matter stated, but must be considered merely as impeaching the witness.
Under reason number one, no decision of this court is named and none can be named. The opinion does not hold that the Appellate Court may weigh or has weighed evidence on appeal. Furthermore, under our rules this claim raises no question for decision. Rule 2-23 (4) (a).
The second contention is directly answered in decisions of this court where it has been held repeatedly that impeaching evidence cannot be considered as proof of the facts in dispute 2. between the parties. Allen et al. v. Davis (1885), 101 Ind. 187, The Ohio, etc., R.W. Co. v. Stein (1892), 133 Ind. 242, 31 N.E. 180, 32 N.E. 831, 19 L.R.A. 733; Sanger v. Bacon (1913), 180 Ind. 322, 101 N.E. 1001; Parker v. State (1925), 196 Ind. 534, 149 N.E. 59; Deppert v. State (1929), 200 Ind. 483, 164 N.E. 626.
No valid ground for transfer having been asserted, the petition is denied.
NOTE. — Reported in 57 N.E.2d 62.