
    No. 8584.
    Harman et al. v. Wilson.
    Supreme Court.— Weight of Evidence. — The Supreme Court will not disturb a verdict or finding on the mere weight or preponderance of the evidence.
    From the Boone Circuit Court.
    
      R. W. Harrison and B. S. Higgins, for appellants.
    C. S. Wesner, for appellee.
   Bicknell, C. C.

— The appellee brought this suit upon a note made by the appellant Nelson Harman, payable to the appellee, secured by a mortgage to the appellee, executed by both appellants. The appellants answered, admitting the execution of the mortgage and the note, and pleading payment and set-off. The appellee replied in denial. The issues were tried by the court, who found for the appellee three hundred and thirty-eight dollars, and rendered a judgment for that amount, and for the foreclosure of the mortgage. The appellants moved for a new trial, alleging that the finding and judgment were not sustained by sufficient evidence, and were contrary to law. This motion was overruled, and this appeal was taken, the only error assigned being, that the court erred in overruling the motion for a new trial.

There was evidence tending to show payments made upon the note, and there was also evidence tending to show that those payments were not made upon the note and mortgage mentioned in the complaint, but were paid upon another mortgage held by the appellee. In a case of this kind, the rule as laid down by this court in the case of Swales v. Southard, 64 Ind. 557, is as follows: “ If the record contains any legal evidence tending to sustain each and every fact necessary to constitute a cause of action or cause of defence, this court will not disturb the finding or verdict in the case, upon what we might regard as the preponderance of the evidence. This rule, and the reasons for it, have been so often and so fully stated, * that we deem it unnecessary to cite authorities in support of such rule.” Again, in the case of Butterfield v. Trittipo, 67 Ind. 338, this court said: This court can not and will not weigh the evidence in the record, nor disturb the finding below upon the mere weight of the evidence. This rule is settled by an almost unbroken line of the decisions of this court.” The reasons of this rule will be found in Gox v. The State, 49 Ind. 568, and in The Fort Wayne, etc., R. R. Co. v. Husselman, 65 Ind. 73. The only point made and argued in the appellants’ brief is that the preponderance of the evidence was against the finding of the court. There was no error in overruling the motion for a new trial. The judgment of the court below ought to be affirmed.

Pee Cueiam. — It is therefore oi’dered, upon the foregoing opinion, that the judgment of the court below be and the same is hereby in all things affirmed, at the costs of the appellants.  