difference rule in Indiana

1980If the trial court dismissed the suit on a motion to dismiss filed under TR. 12(B)(6), the standard to be applied is that a complaint is “subject to dismissal only when it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts.” Pactor v. Pactor (1979), Ind. App., 391 N.E.2d 1148, 1152 ; see State v. Rankin (1973), 260 Ind. 228 , 294 N.E.2d 604 .

1949Sims v. State (1931), 197 Ind. 311, 321 , 147 N. E. 520 ; Saraceno v. State (1931), 202 Ind. 663, 667 , 177 N. E. 436 ; Farley v. State (1890), 127 Ind. 419 , 26 N. E. 898 . *304 I recognize fully the difference in the rule applicable in the trial court during the trial and in the consideration of the motion for new trial, and that applicable in this court on appeal.

1949Sims v. State (1931), 197 Ind. 311, 321 , 147 N. E. 520 ; Saraceno v. State (1931), 202 Ind. 663, 667 , 177 N. E. 436 ; Farley v. State (1890), 127 Ind. 419 , 26 N. E. 898 . *304 I recognize fully the difference in the rule applicable in the trial court during the trial and in the consideration of the motion for new trial, and that applicable in this court on appeal.

1949This difference is correctly explained with many supporting authorities in Luttrell v. State (1932), 204 Ind. 116, 119 , 183 N. E. 318 .

1949This difference is correctly explained with many supporting authorities in Luttrell v. State (1932), 204 Ind. 116, 119 , 183 N. E. 318 .

1949Sims v. State (1931), 197 Ind. 311, 321 , 147 N. E. 520 ; Saraceno v. State (1931), 202 Ind. 663, 667 , 177 N. E. 436 ; Farley v. State (1890), 127 Ind. 419 , 26 N. E. 898 . *304 I recognize fully the difference in the rule applicable in the trial court during the trial and in the consideration of the motion for new trial, and that applicable in this court on appeal.

1949Sims v. State (1931), 197 Ind. 311, 321 , 147 N. E. 520 ; Saraceno v. State (1931), 202 Ind. 663, 667 , 177 N. E. 436 ; Farley v. State (1890), 127 Ind. 419 , 26 N. E. 898 . *304 I recognize fully the difference in the rule applicable in the trial court during the trial and in the consideration of the motion for new trial, and that applicable in this court on appeal.

1949Sims v. State (1931), 197 Ind. 311, 321 , 147 N. E. 520 ; Saraceno v. State (1931), 202 Ind. 663, 667 , 177 N. E. 436 ; Farley v. State (1890), 127 Ind. 419 , 26 N. E. 898 . *304 I recognize fully the difference in the rule applicable in the trial court during the trial and in the consideration of the motion for new trial, and that applicable in this court on appeal.

1949Sims v. State (1931), 197 Ind. 311, 321 , 147 N. E. 520 ; Saraceno v. State (1931), 202 Ind. 663, 667 , 177 N. E. 436 ; Farley v. State (1890), 127 Ind. 419 , 26 N. E. 898 . *304 I recognize fully the difference in the rule applicable in the trial court during the trial and in the consideration of the motion for new trial, and that applicable in this court on appeal.

1917In that case the court do not allude to the English cases on this subject, nor indeed to any of the American cases, except Navigation Co. v. Wright ( 6 Cal. 258 ) and they draw a distinction between the two, based on the fact that in one case the word heirs is used while in the other it is not, and the court make a difference in the principle governing them.

1894The difference in the rule that prevails in an Appellate Court and the trial court, in relation to new trials, is correctly and tersely expressed by the Supreme Court, in Christy v. Holmes, 57 Ind. 314 , as follows: "In the circuit court, it must clearly appear that substantial justice has been done by the verdict, or a new trial should be granted; in the Supreme Court, it must clearly appear that substantial justice has not been done, or the judgment should be affirmed.” The granting of a new trial rests largely in the discretion of the nisi prius court, and will only be reviewed by an appell

1894Hines v. Driver, 89 Ind. 339 .

1893In Parkchurst v. Watertown Steam Engine Co., 107 Ind. 594 , the law of this State is stated to be “that an indorsee of a part of such notes so secured by mortgage, is entitled in equity to payment out of the mortgage funds, in preference to the notes retained by the mortgagee and assignor, although the notes so assigned may fall due subsequently to those retained by the mortgagee.” This modifies, to some extent, the rule as held in State Bank v. Tweedy, supra. It is also intimated or suggested, rather, in the case of Parkhurst v. Watertown Steam Engine Co., supra, that a difference in the rule

1893In Parkchurst v. Watertown Steam Engine Co., 107 Ind. 594 , the law of this State is stated to be “that an indorsee of a part of such notes so secured by mortgage, is entitled in equity to payment out of the mortgage funds, in preference to the notes retained by the mortgagee and assignor, although the notes so assigned may fall due subsequently to those retained by the mortgagee.” This modifies, to some extent, the rule as held in State Bank v. Tweedy, supra. It is also intimated or suggested, rather, in the case of Parkhurst v. Watertown Steam Engine Co., supra, that a difference in the rule

1893In Parkchurst v. Watertown Steam Engine Co., 107 Ind. 594 , the law of this State is stated to be “that an indorsee of a part of such notes so secured by mortgage, is entitled in equity to payment out of the mortgage funds, in preference to the notes retained by the mortgagee and assignor, although the notes so assigned may fall due subsequently to those retained by the mortgagee.” This modifies, to some extent, the rule as held in State Bank v. Tweedy, supra. It is also intimated or suggested, rather, in the case of Parkhurst v. Watertown Steam Engine Co., supra, that a difference in the rule

1893The case of Board, etc., v. Hill, supra, is, in most respects, similar to the case before us, the only difference in principle being that the original work was destroyed by flood instead of becoming deficient through the in sufficiency of the plans and specifications prepared by the agent of the county and adopted by the board.