Berkey v. Rensberger
| Citation | 96 N.E. 32,49 Ind.App. 226 |
| Decision Date | 13 October 1911 |
| Docket Number | 7,118 |
| Parties | BERKEY, GUARDIAN, v. RENSBERGER ET AL |
| Court | Court of Appeals of Indiana |
Rehearing denied January 12, 1912.
From Elkhart Circuit Court; James S. Dodge, Judge.
Suit by Valentine Berkey, as guardian of Fannie Rensberger, an insane person, against Jonas Rensberger and others. From a judgment for defendants, plaintiff appeals.
Affirmed.
E. A Dausman, for appellant.
Charles W. Miller, James S. Drake, Schuyler C. Hubbell, George R Harper, William H. Charnley and Lloyd L. Burris, for appellees.
This was a suit by appellant, as guardian of Fannie Rensberger, against appellees Jonas Rensberger, Lizzie Rensberger and Mitchell Charnley, to restrain them from negotiating a promissory note executed by said ward; and to cancel said note. There was a trial by the court, special finding of facts and conclusion of law, with judgment in favor of appellees for costs.
The errors assigned are that the court erred (1) in overruling appellant's motion for new trial, and (2) in its conclusions of law on the special findings.
It is first insisted by appellees that this appeal should be dismissed because of a failure by appellant to comply with that part of rule three of this court which requires an "index referring to the initial page of the direct, cross and reexamination of each witness, and of each pleading, exhibit and other paper in the record, such index to form the first page of the transcript." This insistence is without merit, because there is on the first page of the transcript in this case a complete index of all pleadings, record entries, etc., and a reference by page to the index of the evidence, which is found at the beginning thereof. This is a substantial compliance with the rule.
A dismissal of the appeal is urged on the further ground that appellant, in the preparation of his brief, has failed to comply with the rules of this court. The objections urged are not of such a character as show a failure substantially to comply with these rules, and may be disposed of by the language of the Supreme Court in the case of Howard v. Adkins (1906), 167 Ind. 184, 186, 78 N.E. 665: See, also, Stametz v. Mitchenor (1906), 165 Ind. 672, 75 N.E. 579; Swing v. Hill (1905), 165 Ind. 411, 75 N.E. 658.
It is next argued by appellees that the first assignment of error should not be considered, because the "motion for a new trial was filed and overruled November 14, 1908, at the October term, 1908, of the Elkhart Circuit Court, and no time was given in which to file a bill of exceptions, and the bill of exceptions containing the evidence was not filed until the December term of said court." Appellees are not supported in this contention by the record in the case. The original transcript filed herein shows that appellant's motion for a new trial was filed and overruled on November 14, 1908, and that he was then given sixty days in which to prepare and file his bill of exceptions, and that said bill, containing the evidence, was filed on December 22, 1908. It is true that there has been filed in this case, since the filing of the original transcript, what is designated as a "Supplemental Record by Appellees," which shows that on December 21, 1908, a motion was made by appellees and sustained by the court, striking out that part of the record entry which gave the appellant sixty days time in which to prepare and file said bill of exceptions. This supplemental record further discloses, however, that after sustaining said motion the court entertained another motion made by appellant for a nunc pro tunc entry, which was by the court heard and sustained, and the court ordered " So not only the original, but the supplemental record fails to support appellees' contention.
It is insisted by appellees, however, that the nunc pro tunc entry was unauthorized and invalid, because not based upon any entry or memorandum found among the records of the case, but in the absence of a bill of exceptions containing all the evidence introduced before the court, upon which the nunc pro tunc entry was granted, the validity thereof is not before this court, and this court indulges the presumption that the ruling of the trial court thereon was correct. Salem-Bedford Stone Co. v. O'Brien (1898), 150 Ind. 656, 49 N.E. 457; Elliott, App. Proc. § 215.
Furthermore, appellees' contention in this matter is not entitled to consideration, for the reason that the so-called "Supplemental Record," upon which the contention is based, is not properly before this court. No writ of certiorari was ever applied for or granted by this court bringing this supplemental record into the case, but it was brought here by precipe filed by appellees in the court below after the original transcript herein was filed in this court, to wit, February 2, 1909. If the transcript filed in this court is incorrect or incomplete the remedy is not by an independent precipe, but by petition for a writ of certiorari. Price v. Huddleston (1906), 167 Ind. 536, 79 N.E. 496; Elliott App. Proc. § 216; Ewbank's Manual § 22.
The first error argued by appellant is the overruling of the motion for a new trial, and it is first insisted that "the decision is contrary to law, for the reason that the court should have found the following facts, which are not found."
Then follows an enumeration of matters that appellant insists the court should have found, some of which are conclusions, and some merely items of evidence, and not the ultimate fact which the finding is supposed to contain. It is not necessary to go into these items in detail, because the questions attempted to be raised are not presented by this ground of the motion.
The statement that the verdict is contrary to law, raises such errors, occurring upon the trial, as have been carried into the verdict. Cincinnati, etc., R. Co. v. Darling (1892), 130 Ind. 376, 30 N.E. 416; Robinson Machine Works v. Chandler (1877), 56 Ind. 575; Jennings v. Ingle (1905), 35 Ind.App. 153, 73 N.E. 945.
The failure to find a material fact is, in effect, a finding as to such fact against the party on whom the burden of proving such fact rests. State Bank v. Backus (1903), 160 Ind. 682, 67 N.E. 512; McGrew v. Thayer (1900), 24 Ind.App. 578, 57 N.E. 262.
The ruling of the court in excluding "the decree adjudging Fannie Rensberger to be a person of unsound mind and appointing appellant her guardian," is urged as error.
The motion for a new trial shows that this offered decree was rendered subsequent to the execution of the note in suit.
Counsel upon neither side of the case have furnished us with any decision of our own State upon this question, and we have been unable to find any expression of this court or the Supreme Court directly in point. We have however,...
To continue reading
Request your trial