LIGHTHOUSE ELECTRIC CO. v. KELLOGG, ETC., CO., 95 Ind. App. 69 (1932)

182 N.E. 545

LIGHTHOUSE ELECTRIC COMPANY v. KELLOGG SWITCHBOARD AND SUPPLY COMPANY.

No. 14,411.Court of Appeals of Indiana.
Filed October 5, 1932.

1. APPEALS — Review of Evidence. — Unless there is a total lack of evidence to sustain the finding and judgment of the trial court, the judgment will be affirmed on appeal. p. 69.

2. APPEALS — Review of Evidence — Where there is Conflict. — Where the evidence is conflicting, the Appellate Court will not weigh it on appeal. p. 70.

Suit by the Kellogg Switchboard Supply Company against the Lighthouse Electric Company. From a judgment for plaintiff, defendant appealed. Affirmed. By the court in banc.

Willis C. McMahan and J. Edwin Smith, for appellant.

John C. Capouch, for appellee.

WOOD, C.J.

Appellee brought suit against appellant on account for merchandise sold and delivered to it. The complaint was in one paragraph. To this complaint appellant filed five paragraphs of answer, four of them designated as counter-claims, setting up affirmative matter. There was no answer of general denial filed. To these five paragraphs of answer appellee filed a reply in general denial. Upon these issues the cause was submitted to the court for trial without a jury. Judgment was rendered for appellee. Appellant filed a motion for a new trial, which was overruled, and this ruling is the only error assigned for reversal. The causes for a new trial were insufficiency of the evidence to sustain the decision of the court, and that it was contrary to law.

Unless there is a total lack of evidence to sustain the finding and judgment of the trial court, as contended by appellant, 1. the judgment will have to be affirmed.

We have made a thorough examination of all the evidence, submitted on the trial of the cause, and while it

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is conflicting in some instances, there is sufficient evidence to sustain the judgment from which this appeal is taken.

Where the evidence is conflicting, this court will not weigh it on appeal. Payne v. Cravens (1931), 92 Ind. App. 197, 2. 174 N.E. 712.

Judgment affirmed. Curtis, J., not participating.