Boyer v. Robertson

• Decision Date: 22 April 1896
• Citation: 43 N.E. 879,144 Ind. 604
• Parties: BOYER v. ROBERTSON et al.
• Court: Indiana Supreme Court

144 Ind. 604

43 N.E. 879

BOYER

v.ROBERTSON et al.

Supreme Court of Indiana.

April 22, 1896.

Appeal from circuit court, Carroll county; M. B. Lairy, Judge.

Action by George W. Robertson and others against Isaiah Boyer. From a judgment for plaintiffs, defendant appeals. Reversed.L. D. Boyd, for appellant. Pollard & Pollard, for appellees.

McCABE, J.

The appellees sued the appellant to recover possession of two certain town lots and four acres of land, the complaint being in the ordinary form for the recovery of possession of real estate, except that the description of the four acres was defective. The circuit court overruled a demurrer to the complaint. A trial of the issue formed upon the complaint resulted in a special verdict, upon which the court rendered a judgment for the plaintiffs, over a motion for judgment in defendant's favor, and a motion for a venire de novo.

The only tenable objections to the special verdict which we find are covered up in a jungle of 30 pages of appellant's typewritten brief, in and among a mass of irrelevant and many of them untenable propositions of law. Said objections are that the special verdict finds the evidentiary facts, instead of the inferential facts, and that it does not find any sufficient description of the four acres. The facts put in issue by the complaint and answer were that the plaintiffs were the owners in fee simple of the lands described in the complaint, and entitled to possession, and that the defendant was in possession without right. None of these facts were found. It was indispensably necessary that they should have been found before the plaintiffs were entitled to judgment. Railway Co. v. O'Brien (Ind. Sup.) 41 N. E. 528, and cases there cited. Every single item of evidence necessary to justify a finding of the above-mentioned facts in issue is contained in the special verdict. We do not mean to say that each item of such evidence was full enough, but each item was in some form set forth in the special verdict. But a special verdict must find the facts in issue, and not mere evidence of them, so that the law will irresistibly infer a certain result. Gordon v. Stockdale, 89 Ind. 240. The evidentiary facts are merely the evidence, and, if found in a special verdict, cannot afford any support to a judgment. Whitworth v. Ballard, 56 Ind. 279; Gordon v. Stockdale, supra; Jones v. Baird, 76 Ind. 164;Railway Co. v. Adams, 105 Ind. 151, 5 N. E. 187;Railway Co. v. Bush, 101 Ind. 582;Tousey v. Lockwood, 30 Ind. 153;Davis v. Franklin, 25 Ind. 407;Smith v. James, 131 Ind. 131, 30 N. E. 902;Locke v. Bank, 66 Ind. 353;Railway Co. v. Miller, 141 Ind. 533, 37 N. E. 343.

The party having the burden of the issue cannot have judgment unless the special verdict finds all the facts essential to a recovery. Waymire v. Lank, 121 Ind. 1, 22 N. E. 735;Walkup v. May, 9 Ind. App. 412, 36 N. E. 917. The plaintiffs had the burden, and none of the facts essential to their recovery are found in the special verdict. The facts found not being sufficient to entitle the plaintiffs to judgment, the defendant's motion for judgment in his favor should have been sustained, unless the condition of the verdict is such as to make the defendant's remedy either a motion for a venire de novo or for a new trial. Dixon v. Duke, 85 Ind. 434;O'Neal v. Railway Co., 132 Ind. 110, 31 N. E. 669. The reason of the general rule, in cases where the special verdict fails to find all the facts essential to a recovery by the plaintiff or the party having the burden, that the other party is entitled to judgment, is that nothing appearing in the verdict to the contrary, the presumption is that the fact or facts not found were not so found because they were not proven, and hence the verdict in such case is not defective. Wilson v. Hamilton, 75 Ind. 71;Johnson v. Putnam, 95 Ind. 57;Spraker v. Armstrong, 79 Ind. 577;Deeter v. Sellers, 102 Ind. 458, 1 N. E. 854;Railway Co. v. Buck, 116 Ind. 566, 19 N. E. 453;Railway Co. v. Finnell, 116 Ind. 414, 19 N. E. 204;Bank v. Bolen, 121 Ind. 301, 23 N. E. 146. Such a verdict, usually, is not defective, because, there being a failure to find facts, the burden of which, under the issues, rested on the plaintiff, it is deemed equivalent to a finding against the plaintiff as to the existence of those facts; and an express finding against the plaintiff on any or all the issues is not a defective finding or verdict. Ex parte Walls, 73 Ind. 95;Williams v. Osbon, 75 Ind. 280; Parker v. Hubble, Id. 580; Stumph v. Bauer, 76 Ind. 157; Henderson v. Dickey, Id. 264; McLaughlin v. Ward, 77 Ind. 383;Studabaker v. Langard, 79 Ind. 320; Spraker v. Armstrong, supra; Talburt v. Insurance Co., 80 Ind. 434;Ayers v. Adams, 82 Ind. 109; Dixon v. Duke, supra; City of Elkhart v. Wickwire, 87 Ind. 77;Nitche v. Earle, 88 Ind. 375;Hunt v. Blanton, 89 Ind. 38; Bank v. Carter, Id. 317; Davis v. Watts, 90 Ind. 372;Johnson v. Ramsay, 91 Ind. 189;Dodge v. Pope, 93 Ind. 480;Vinton v. Baldwin, 95 Ind. 433;Griffin v. Rochester, 96 Ind. 545;Yerkes v. Sabin, 97 Ind. 141;Trittipo v. Morgan, 99 Ind. 269;Krug v. Davis, 101 Ind. 75;Parmater v. State, 102 Ind. 90, 3 N. E. 382;Rice v. City of Evansville, 108 Ind. 7, 9 N. E. 139;Stix v. Sadler, 109 Ind. 254, 9 N. E. 905;Brown v. Jones, 113 Ind. 46, 13 N. E. 857;Railway Co. v. Barnhart, 115 Ind. 399, 16 N. E. 121;Improvement Co. v. Loehr, 124 Ind. 79, 24 N. E. 579;Town of Freedom v. Norris, 128 Ind. 377, 27 N. E. 869;Reddick v. Keesling, 129 Ind. 128, 28 N. E. 316;Town of Fowler v. Linquist, 138 Ind. 566, 37 N. E. 133.

But that is the rule only where there is nothing in the...