
    Miles v. Miller and Sons.
    [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.
    
      8. 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.
   Enloe, J.

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 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. 585, 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 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.  