Bass v. Citizens' Trust Co.

• Decision Date: 15 March 1904
• Citation: 32 Ind.App. 583,70 N.E. 400
• Parties: BASS et al. v. CITIZENS' TRUST CO.
• Court: Indiana Appellate Court

32 Ind.App. 583

70 N.E. 400

BASS et al.

v.CITIZENS' TRUST CO.

Appellate Court of Indiana, Division No. 2.

March 15, 1904.

Appeal from Circuit Court, Lawrence County; W. H. Martin, Judge.

Action by the Citizens' Trust Company, administrator of the estate of Jacob Y. Bates, deceased, against Hugh Bass and others. From a judgment for plaintiff, defendants appeal. Affirmed.S. B. Lowe, for appellants. E. K. Dye, Edwards & Edwards, and Brooks & Brooks, for appellee.

WILEY, P. J.

Action by appellee against appellants to set aside a conveyance of real estate, as fraudulent, and subject it to the payment of a judgment against Hugh Bass in favor of the estate represented by appellee. The complaint was in one paragraph, to which a demurrer was overruled. Answer in denial. Finding and judgment for appellee. Appellants' motion for a venire de novo, a new trial, and to modify the judgment, were each overruled. All rulings adverse to appellants are assigned as errors.

There is in the record what purports to be a special finding of facts, and conclusions of law stated thereon. In all cases triable by the court, a general finding is authorized by the statute, except where one or both of the parties properly request the court to make a special finding of facts, and state its conclusions of law thereon. Section 560, Burns' Rev. St. 1901. In the absence of such request being made, and where it does not affirmatively appear from the record that it was made, and the court makes a special finding of facts, it will be treated as a general finding. Such request will not be implied. Elliott's App. Prac. § 732, and authorities there cited. Under the authorities, we can only treat the special finding as a general finding. All questions attempted to be raised by the record which depend upon the special finding of facts for their determination cannot be considered. Appellants' motion for a venire de novo was upon the ground that the special finding was so defective, uncertain, and ambiguous that no judgment could be rendered thereon, and that the special finding “set out conclusions of law,” and “did not find the facts.” Appellants also excepted to the conclusions of law, and have assigned error predicated thereon. Under the rule stated, these questions will not be considered. This leaves for consideration the sufficiency of the complaint, the motion for a new trial, and the motion to modify the judgment.

The substance of the complaint is that Hugh Bass purchased real estate, and had the conveyance made to his wife and co-appellant for the purpose of defrauding his creditors; that at the time of said conveyance said Hugh Bass had no property left subject to execution, nor has he since had; that said Rebecca Bass paid no part of the consideration for said real estate; that said Hugh Bass borrowed of Jacob Y. Bates, now deceased, the sum of $500, which was applied to the payment of the purchase price of the real estate so purchased; and that appellant Rebecca had full knowledge of such facts. The complaint further shows that when Hugh Bass borrowed the $500 he gave a note therefor; that said note had been reduced to a judgment, execution issued thereon, and returned nulla bona. The objections urged to the complaint are: (1) That it affirmatively appears that Hugh Bass had no property except...