Blagetz v. Blagetz
| Decision Date | 19 November 1941 |
| Docket Number | 16586. |
| Citation | 37 N.E.2d 318,109 Ind.App. 662 |
| Parties | BLAGETZ v. BLAGETZ. |
| Court | Indiana Appellate Court |
George E. Hershman and Russell A. Nixon, both of Crown Point, and Charles E. Daugherty, of Gary, for appellant.
Gavit & Richardson, of Gary, and Frank B. Pattee, of Crown Point, for appellee.
DE VOSS, Presiding Judge.
Appellant brought this action for divorce against appellee in the Lake Circuit Court alleging as cause therefor cruel and inhuman treatment. The complaint alleged further that at the time of her marriage to appellee, she was possessed of $1,000, and that by the joint efforts of appellant and appellee and said $1,000, they accumulated and became the owners of lots 7 and 8, Block 1, and lots 25 and 26, Block 7, South Broadway Addition; lots 1 and 2, Block 1, Second South Broadway Addition, and also lots 8, 9, 10, 11, and 12, Block 1 Carlson's First Addition in the City of Gary, Lake County, Indiana. The prayer in the complaint was for an absolute divorce and all other proper relief.
To this complaint, appellee filed an answer in general denial. Appellee also filed a cross complaint, charging appellant with cruel and inhuman treatment and further alleged that he was the owner of the property described in the complaint. The cross complaint prayed that he be granted an absolute divorce, and that he be adjudged the sole owner of the real estate described in the complaint.
Appellant filed her answer to the cross complaint in general denial. The cause was submitted to the court for trial and a judgment rendered for appellant granting her an absolute divorce and adjudging appellant and appellee the owners as tenants in common of lots 7 and 8 in Block 1 in South Broadway Addition lots 8 to 12 inclusive in Block 1 in Carlson's First Addition, and lots 25 and 26 in Block 7 in South Broadway Addition to Gary.
The judgment further provided that appellee was the individual owner of lots 1 and 2 in Block 1, South Broadway Addition. The judgment conformed specifically to the general finding of the Court.
Appellant thereupon filed a motion to modify the judgment so that the same would decree that appellant and appellee are the owners as tenants in common of all of the real estate described in the complaint and held by them as tenants by entireties prior to and immediately before the judgment herein above was rendered. The motion to modify the judgment was overruled by the court and exception served by appellant.
Appellant filed a motion for a new trial which was overruled by the court, exception was had to such ruling and this appeal followed.
The errors assigned and relied upon for a reversal in this court are: (1) The court erred in overruling appellant's motion to modify the judgment. (2) The court erred in overruling appellant's motion for a new trial. The specific reasons for a new trial as set out in the motion therefor are: (1) The finding of the court is not sustained by sufficient evidence. (2) The finding of the court is contrary to law.
The overruling of appellant's motion to modify the judgment is the first assigned error. By this motion, appellant sought to have the judgment changed, not only in form, but to have a judgment rendered entirely different from the finding of the court.
In the case of Hinton, Adm'r, v. Bryant, 99 Ind.App 38, 190 N.E. 554, 558, this Court, in passing upon a motion to modify a judgment, said: "The office of any such motion is to make the judgment in harmony with the verdict or finding, as the case may be, and it cannot be made to perform the office of a motion for a new trial; it may be used to correct some matter of form in a judgment, but not to secure the substitution of a different one."
See also Haas v. Wishmier's Estate, 99 Ind.App. 31 190 N.E. 548: Moore v. Moore, 81 Ind.App. 169, 135 N.E. 362.
There is no error in overruling a motion to modify a judgment which follows the findings. Heppe v. Heppe, 85 Ind.App 39, 152 N.E. 293; Wise v. Layman, 197 Ind. 393, 150 N.E. 368.
The judgment herein follows the finding and we find no error in overruling such motion.
It is contended by appellant under the reasons set forth in the motion for a new trial that the evidence does not sustain the finding and judgment of the court relative to the real estate involved.
No question is raised or discussed by either of the parties relative to the sufficiency of the evidence to grant a decree of divorce to appellant on the grounds of cruel and inhuman treatment.
The evidence discloses that the parties hereto were married October 24, 1911, and separated April 21, 1938. During all the...
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