Opinion
No. 14,311.
Filed March 11, 1932.
1. MARRIAGE — Annulment — For Fraud — In Regard to Wife's Chastity — Evidence Sufficient to Sustain Decision in Favor of Wife. — In a suit to annul a marriage for fraud on the theory that the plaintiff was not the father of the wife's unborn child, the evidence held sufficient to sustain the court's decision in favor of the wife, although there was evidence to the contrary. p. 170.
2. APPEALS — Sufficiency of Evidence — Rule Stated. — Where there is material competent evidence to sustain the trial court's decision, the judgment will not be reversed because of the insufficiency of the evidence. p. 170.
3. APPEALS — Weighing Evidence — Precluded on Appeal. — Where there is any conflict in the evidence, an appellate tribunal will not weigh the evidence. p. 171.
From Greene Circuit Court; George G. Humphrey, Judge.
Suit by Bryan Powell against Helen Powell to annul their marriage. From a judgment for defendant, the plaintiff appealed. Affirmed. By the court in banc.
William L. Slinkard, for appellant.
Will R. Vosloh, for appellee.
This was a suit to annul a marriage for fraud in inducing appellant to enter into such marriage. The complaint was in one paragraph, which was answered by a general denial. There was a trial before the court, with a finding that appellant take nothing by his complaint, and judgment followed. The motion for a new trial assigned that the finding and decision was not sustained by sufficient evidence and that the finding and decision were contrary to law. The assignment here is that the court erred in overruling the motion for a new trial.
The facts material are as follows: Appellant and appellee had intercourse on April 29, 1928; both testified that they had never had intercourse together before or since that time until after their marriage December 1, 1928; on or about November 30, 1928, appellant was arrested and charged with bastardy; upon the representation that he was the father of the unborn child, they married; on March 5, 1929, a normal child was born to the appellee; appellant left shortly thereafter and never returned to appellee as a husband. Appellee testified that she had never had intercourse with any other person than appellant; two doctors of medicine testified that they had grave doubts as to this being the child of appellant and that, in all their experience, they had never known a child to be "carried" that long.
There is material competent evidence here from which the trial court could arrive at the conclusion reached. Where there is material competent evidence to sustain the lower court, 1, 2. this court will not reverse. Renihan v. Piowaty (1932), post 523; Keenan Hotel Co. v. Funk (1931), 93 Ind. App. 677, 177 N.E. 364; First Nat. Bank v. Federal Land Bank (1931), 93 Ind. App. 15, 177 N.E. 462; Senrich v. Carson (1931), 92 Ind. App. 649, 176 N.E. 874.
From the above quoted testimony it is apparent that the evidence is somewhat conflicting. Where there is any conflict in the evidence, this court cannot and will not weigh such 3. evidence. Carlisle Sweet Potato Co. v. Lambright (1931), 93 Ind. App. 12, 177 N.E. 338; Commercial Acceptance Co. v. Walton (1931), 93 Ind. App. 136, 176 N.E. 244; Wool Growers Commission Co. v. Gabler (1931), 92 Ind. App. 462, 176 N.E. 249.
The judgment of the Greene Circuit Court is, therefore, affirmed, and it is so ordered.