Booher v. Booher

• Decision Date: 25 May 1949
• Docket Number: No. 17854.,17854.
• Citation: 119 Ind.App. 294,86 N.E.2d 95
• Parties: BOOHER v. BOOHER.
• Court: Indiana Appellate Court

119 Ind.App. 294

86 N.E.2d 95

BOOHER

v.BOOHER.

No. 17854.

Appellate Court of Indiana, in Banc.

May 25, 1949.

Appeal from Knox Circuit Court; Ralph A. Seal, Judge.

Proceeding by Lillian Booher against Wendell Booher for divorce, wherein defendant filed a cross-complaint seeking to the judgment, defendant appeals. the judgment, defendant appeals

Judgment affirmed.Paul Haywood, Bloomfield, Beasley & Beasley, Linton, for appellant.

Curtis V. Kimmell, Vincennes, J. W. Kimmell, Vincennes, for appellee.

CRUMPACKER, Judge.

In adjudication of proceedings brought by the appellee Lillian Booher, the Knox Circuit Court granted her a divorce from the appellant Wendell Booher, together with $1,000 alimony and $325 for the use and benefit of her attorneys. In entering its decree the court designated the appellant as ‘William Booher’ in both its finding and judgment but after this appeal was lodged with us the misprision was corrected by nunc pro tunc order and such supplemental record was brought here by writ of certiorari. Previous to her union with the appellant the appellee had been married to one Kenneth E. Muller but that marriage also proved unsuccessful and terminated in a divorce granted by the Greene Circuit Court on September 26, 1946, in which it was ‘further considered, ordered and adjudged by the court that the plaintiff (the appellee herein) be and she is hereby restrained from remarrying for a period of two years.’ A little more than six months prior to the expiration of this limitation the appellee entered the marriage contract here involved. Alleging his ignorance of this situation and believing that the appellee's disregard of the inhibitory order of the Greene Circuit Court rendered his present marriage void, the appellant filed a cross-complaint designated as ‘Second Paragraph of Answer’ in which he sought to have the same so declared. A divorce, however, was granted to the appellee on her complaint.

We are asked to reverse this judgment because (1) it runs against ‘William Booher,’ a stranger to the record; (2) the court made no final disposition of the issues presented by the second paragraph of answer; and (3) the decision is not sustained by sufficient evidence and is contrary to law.

The first of these propositions is eliminated by the nune pro tunc proceedings to correct the record heretofore described and we assume that it was urged upon us because the transcript of the record, the assignment of errors and the appellant...