Binford v. Miner

• Decision Date: 09 January 1885
• Docket Number: 11,117
• Parties: Binford, Guardian, v. Miner et al
• Court: Indiana Supreme Court

101 Ind. 147

Binford, Guardian, v. Miner et al

No. 11,117

Supreme Court of Indiana

January 9, 1885

Petition for a Rehearing Overruled June 13, 1885.

From the Hancock Circuit Court.

J. A New, J. W. Jones and J. H. Binford, for appellant.

C. G Offutt and W. R. Hough, for appellees.

OPINION

Franklin C.

Appellant sued appellee Thomas H. Miner on a settlement made March 4th, 1879, for a balance then found due his ward of $ 5,499.72, and to foreclose a deed as a mortgage executed to secure the payment of the same against him and his wife. The wife made no defence. The husband filed an answer in eight paragraphs:

1st. A general denial.

2d. Usury in part, want of consideration as to the usurious part, and payment as to the balance.

3d. Mistake in the settlement.

4th. Substantially the same as the second.

5th. No consideration.

6th. Payment.

7th. Set-off.

8th. Usury in part and payment as to balance.

A demurrer was sustained to the second, third and fourth paragraphs, and overruled as to the fifth, sixth, seventh and eighth.

A reply was filed in four paragraphs:

1st. A general denial.

2d. Settlement of all items in set-off prior to March 4th, 1879.

3d. All items since March 4th, 1879, were paid and received as rents on the deeded premises.

4th. If there was any usury, it was voluntarily paid.

A demurrer was overruled to each paragraph of the reply.

Accompanying the deed there was at the same time executed by appellant's ward a defeasance or agreement, upon the payment of $ 5,499.72 within two years, to reconvey the lands to appellee Thomas. The deed and agreement were both, as exhibits, made a part of the complaint.

There was a trial by the court, and upon request a special finding was made and conclusions of law stated. Over a motion for a new trial, judgment was rendered in favor of the plaintiff for $ 3,872.84. When, after the rendition of the judgment, it appears by the record that the plaintiff then moved to have entered of record his exceptions to the findings and conclusions of law. There is also in the record a bill of exceptions showing that appellant at some time, but when is not stated, made a motion to make the special findings more specific, also moved the court to make additional findings, and to enter of record additional findings made by the court, all of which motions were overruled.

The errors assigned in this court are:

1st. Overruling demurrer to fifth, sixth, seventh and eighth paragraphs of answer.

2d. Overruling objections to special findings.

3d. Overruling motion for a new trial.

4th. Error in conclusions of law.

5th. Overruling motion to make special findings more specific.

6th. Overruling motion to make special findings as to rents.

7th. Overruling motion to enter of record other findings by the court.

We see no error in the rulings upon the demurrer to the various paragraphs of the answer.

The second specification, overruling objections to special findings, presents no question for consideration.

The fourth, fifth, sixth and seventh specifications, based upon exceptions to the conclusions of law, and motions in relation to the findings, are not shown by the record to have been made at the proper time; they may have each been overruled for that reason. All presumptions are in favor of the action of the court, and in order to reverse a judgment the error must affirmatively appear in the record, which, as to these specifications, we do not see so appearing in this record.

The motion for a new trial states nineteen reasons, and we do not think it necessary to refer to them all.

The fifth and sixth...