Beaty v. Donaldson

• Decision Date: 16 July 1964
• Docket Number: No. 2,No. 19987,19987,2
• Citation: 136 Ind.App. 269,200 N.E.2d 233
• Parties: Morris H. N. BEATY, Appellant, v. John W. DONALDSON, as Executor of Myrtle J. Beaty, Deceased, and, Lloyd M. Headley and Mary B. Headley, Husband and Wife, Appellees
• Court: Indiana Appellate Court

Page 233

200 N.E.2d 233

136 Ind.App. 269

Morris H. N. BEATY, Appellant, v. John W. DONALDSON, as Executor of Myrtle J. Beaty, Deceased and, Lloyd M. Headley and Mary B. Headley, Husband and Wife, Appellees.

No. 19987.

Appellate Court of Indiana, Division No. 2.

July 16, 1964.

Johnson & Martin, by Paul H. Johnson, Jr., Zionsville, for appellant.

Webb, Webb & Smith, Noblesville, Wendell B. Iddings, John W. Donaldson, Lebanon, for appellees.

HUNTER, Chief Justice.

This is an action brought by appellant in the Boone Circuit Court to set aside an executor's deed given by appellee John W. Donaldson as executor of the estate of Myrtle J. Beaty, deceased, to appellees Lloyd M. Headley and Mary B. Headley, husband and wife, and grantees therein. This cause was venued from the Boone Circuit Court to the Hamilton Circuit Court.

The issues were formed by allegations in appellant's complaint that a certain sale of real estate was null, void and invalid and the deed evidencing the same should be set aside on the grounds that such sale was not had or made in conformity with an order of court authorizing the same. Appellant specifically alleged that appellee executor failed to give notice of the time, terms and place of such sale as required by the order of court. To these particular allegations, appellees filed their answer in denial.

Trial was had before the court which made a finding and decision on the issues in favor of appellees and against appellant. Judgment was rendered as follows:

'The Court finds against the plaintiff and for the defendant on the plaintiff's complaint and finds that the prayer thereof should not be allowed, costs taxed to the plaintiff.

'All of which is considered, ordered, adjudged and decreed.'

Thereafter appellant filed a motion for new trial which was submitted and overruled.

The appellant's assignment of error presents two questions raised by his motion for new trial which are as follows (1) that the court erred in overruling plaintiff's objection to defendants' exhibits A, B, C and D respectively, and (2) that the finding and decision is not sustained by sufficient evidence and is contrary to law.

The appellant's assignment of error to the effect that the trial court erred in overruling his objections to defendant's exhibits numbered A, B, C and D was a mere general objection on the grounds that said exhibits were immaterial and irrelevant to the issue. It has been stated many times that general objections to the admission of evidence are not sufficient to present any question on appeal, further that the objecting party must state specific grounds of objection to the trial court when the evidence is offered. We believe the rule to be well established that an objection to evidence on the formal grounds that it was irrelevant, incompetent and immaterial is too general, too indefinite and uncertain to present any question on appeal. This is particularly true where the immateriality or irrelevancy of such exhibits are not apparent on the face thereof. Sievers v. The Peters Box and Lumber Co. (1898), 151 Ind. 642, 50 N.E. 877 (Rehearing denied, 151 Ind. 642, 52 N.E. 399; Bass v. The State (1894), 136 Ind. 165, 36 N.E. 124; Stanley et al. v. Holliday (1892), 130 Ind. 464, 30 N.E. 634; Klingler v. Ottinger (1939), 216 Ind. 9, 22 N.E.2d 805; Gary Railways v. Cline (1951), 121 Ind.App. 449, 94 N.E.2d 759, 97 N.E.2d 628; Central Indiana Ry. Co. v. Mitchell (1936), 102 Ind.App. 121, 199 N.E. 439; City of Michigan City v. Werner (1916), 186 Ind. 149, 114 N.E. 636; Hicks v. State (1905), 165 Ind. 440, 75 N.E. 641; Walter v. Pence (1938), 104 Ind.App. 532, 12 N.E.2d 367; Altmeyer v. Norris (1954), 124 Ind.App. 470, 119 N.E.2d 31. Therefore, this court is of the opinion that the appellant has failed to establish reversible error under specification one (1) of his motion for a new trial.

The second specification urged by the appellant in his motion for new trial is that the finding and decision are not sustained by sufficient evidence and are contrary to law. We are of the opinion that the law is well established that where a verdict or judgment against the plaintiff (appellant here) who has the burden of proof in the trial court does not rest upon the quantum of evidence, it cannot be asserted on appeal that such a disposition of the case was not sustained by sufficient evidence. The rule has been well stated that a negative verdict or judgment may not be attacked on the ground that there is lack of evidence to sustain it. Rowe v. Johnson (1945), 223 Ind. 289, 60 N.E.2d 529; Wilson, Admx. v. Rollings (1938), 214 Ind. 155, 14 N.E.2d 905; Glass v. Bailey et al. (1954), 233 Ind. 266, 118 N.E.2d 800; Wilson v. Rollings, supra; Wherry et al. v. Backelman, Trustee, etc. et al. (1955), 126 Ind.App. 136, 130 N.E.2d 777.

The appellant's cause of action below was predicated upon rhetorical paragraph five (5) of his complaint which reads as follows:

'5. That the aforesaid sale of said real estate is null, void and invalid and the deed thereof as aforesaid should be set aside, in this, to wit: that said sale was not had or made in conformity with said order of the Boone Circuit Court dated November 17, 1959, in this, to wit: that Defendant, John W. Donaldson, as Executor aforesaid, did not give notice of the time, terms and place of said sale by two publications, one week apart, the last of which publication was to be at least one day before the date of said sale, in some newspaper of general circulation, printed and published in Boone County, Indiana.'

It will be readily noted that there are no allegations of...