Anderson v. Moise

• Decision Date: 09 November 1945
• Docket Number: 17353.
• Citation: 63 N.E.2d 303,116 Ind.App. 240
• Parties: ANDERSON et al. v. MOISE et al.
• Court: Indiana Appellate Court

63 N.E.2d 303

116 Ind.App. 240

ANDERSON et al. v. MOISE et al.

No. 17353.

Appellate Court of Indiana, in Banc.

November 9, 1945

Appeal from Newton Circuit Court, Ralph Bowen, Judge.

Anderson, Hicks & Anderson, of Gary, for appellants.

Joseph Demarti, Jr., Gavit Richardson & Moise, and Samuel P Moise, all of Gary, for appellees.

FLANAGAN Judge.

The pleadings, issues and parties joined appear to be somewhat unorthodox in this case because two separate actions were consolidated for trial and the parties without objections filed pleadings which were in many ways unique but which succeeded in getting their entire controversies before the court. We will outline only the pleadings which formed the issues finally submitted for trial.

The complaint of appellee Samuel P. Moise is against appellants F. Laurence Anderson, Rosalia Heinrich, Edler Bell and others, seeking to quiet title to certain real estate, for an injunction against interference with his possession thereof and for an accounting of rents collected.

The defendants, other than Heinrich and Bell, filed answers disclaiming any interest in the involved real estate.

Heinrich and Bell filed a pleading in four paragraphs designated a cross-complaint.

The first paragraph alleges that Bell has a contract with Heinrich to purchase the involved real estate; that Bell took possession under that contract in 1930; that Bell thereafter appointed appellee Fred C. Calhoun his agent to collect the rents from said property; that Calhoun has collected rents in an amount unknown and refuses to account for them. An accounting is demanded. The second paragraph seeks to recover from Calhoun $75 alleged to have been deposited with him by Bell for the use and benefit of Heinrich. The third paragraph seeks to recover $1,000 from Calhoun for money had and received. The fourth paragraph alleges the same facts as the first and also that appellees Samuel P. Moise and Fred C Calhoun have combined to cut off the cross-complainants' rights; that the title of Moise to the involved real estate is based on a quitclaim deed from Heinrich which was obtained by fraud and without consideration; that said deed is in fact a mortgage.

Moise and Calhoun filed answers denying the allegations of the cross-complaint.

Trial was to the court which made a special finding and entered conclusions of law thereon in favor of appellees. From the judgment which followed this appeal is taken.

Appellants claim error (1) in the conclusions of law, (2) in overruling their motion to vacate the judgment, and (3) in overruling their motion for a new trial. Appellants fail to support their proposition relating to the above claimed error number (2) with any authority, and it will therefore be given no further notice. Rule 2-17. The grounds for a new trial relied on are (1) that the decision is not sustained by sufficient evidence, and (2) that the decision is contrary to law.

Appellants contend that the court erred in its conclusions of law regarding the taxing of costs. Such conclusions of law are, however, mere surplusage to be disregarded. Boyer v. Everetts, 1916, 185 Ind. 272, 113 N.E. 1003; Sputh v. Francisco Bank, 1938, 105 Ind.App. 149, 13 N.E.2d 880; McCabe v. Grantham, 1941, 108 Ind.App. 695, 31 N.E.2d 658.

Appellants say that the conclusions of law in favor of Calhoun could be correct only if Calhoun was not the agent of Bell to collect rents, whereas the court by its finding numbered A-2 found that Calhoun was in fact the agent of Bell. The court did find that Calhoun was Bell's agent--but only for the purpose of the negotiations to buy the involved real estate. And the court...