O'Brien v. Fulwiler, 19238

Decision Date26 April 1960
Docket NumberNo. 19238,No. 2,19238,2
Citation166 N.E.2d 525,130 Ind.App. 520
PartiesJennie O'BRIEN, Appellant, v. Robert L. FULWILER, Executor of the Last Will and Testament and of the Estate of William B. Fulwiler, Deceased, Appellee
CourtIndiana Appellate Court

Harry G. Cushman, Terre Haute, for appellant.

Johnston & Mankin, H. Ralph Johnston, Terre Haute, for appellee.

KELLEY, Judge.

Appellant's claim for services allegedly furnished by her to decedent was tried by the court without a jury and its finding was against her and that she take nothing by her action. No bill of exceptions containing the evidence has been brought up by appellant. Consequently, no asserted errors depending upon the evidence for determination are available to appellant. Further, appellant discusses only two propositions in her brief and, therefore, under well established rules, all others are waived.

Appellant says that 'an examination of the record discloses that at no place in the record is there any showing that the appellee complied with * * * the first sentence of Rule 1-3 of the Rules of the Supreme Court of Indiana' before proceeding to trial and that there is now showing in the record 'that the trial court directed and required * * * the appellee to comply' with the first sentence of said Rule 1-3 before proceeding to trial. In view of the presumptions we must indulge in favor of the proper action by the trial court, it is obvious that appellant's said assertions would be meritless did not the appellee concede that no answer to appellant's claim was filed by him.

From the premise aforesaid, appellant contends that that part of § 7-812, Burns' 1953 Replacement, providing that 'When any claim is transferred for trial, it shall not be necessary for the personal representative to plead any matter by way of answer, * * *',

is abrogated and superseded by Rule 1-3 of the Rules of the Supreme Court which provides:

'Answers and Replies. The party answering or replying to a pleading shall state, without enlargement or elaboration, that he (1) admits, (2) denies, or (3) is without information as to the facts stated in each rhetorical paragraph or each designated part of such paragraph * * *'

and that it was the 'legal duty' of the trial court, under said Rule 1-3, to direct and require the appellee to comply with said rule by filing an answer to said claim. Appellant does not contend that she moved for a rule or requested the court to require the filing of an answer by appellee before proceeding to trial. She simply says that said Rule 1-3 made it encumbent upon the trial court to cause an issue to be formed before trial by requiring appellee to file answer to her claim.

We think that it is now adequately established and well understood that in practice and procedural matters in the courts of this State the rules adopted by our Supreme Court are preeminent and supersede any statutory provisions relating to such practice and procedure and that such rules are of such vitality as to abrogate and render ineffective 'all laws in conflict therewith.' See. 2-4718, Burns' 1946 Replacement. Stamper v. Link, 1946, 117 Ind.App. 212, 66 N.E.2d 326, 69 N.E.2d 600, 71 N.E.2d 128; State ex rel. Cox v. Superior Court of Marion County et al., 1954, 233 Ind. 531, 121 N.E.2d 881; State v. Jacobson, 1951, 229 Ind. 293, 98 N.E.2d 187; Holt v. Basore, 1948, 118 Ind.App. 146, 77 N.E.2d 903.

Now, is said § 7-812, Burns' 1953 Replacement, in conflict with said Rule 1-3 on the matter of procedure? Said § 7-812 relieves the personal representative in claims against the estate of the necessity of filing an answer to the claim. In order for said Rule 1-3 to be in conflict therewith, it would be necessary to interpret the latter mentioned rule as requiring the personal representative in such cases to file an answer. As we conceive it, there appears no such mandate in the wording or intent of said rule. It states, clearly and simply, that a party answering or replying to a pleading shall do so in the form and manner prescribed by the rule. It does not provide that a party must or shall answer or reply to a pleading. It contains no indication that a party cannot under any circumstances or in any action be relieved of the necessity of filing an answer or reply to a pleading. There is nothing in the rule which leads to the conviction that one of its purposes and intents was to alter or supersede the aforesaid probate code provision, or the provision of any other applicable statute, which raises an issue by operation of the law rather than by the specific answer of the defendant or the reply of the adversary. We find nothing in said Rule 1-3, said statute, § 7-812, Burns' 1953 Replacement, or in appellant's brief which inclines us favorably to the latter's insistence that there exists a conflict on procedural matters between said rule and said statute; that said rule has abrogated and rendered ineffective the quoted provision of said statute, or that it was the 'legal duty' of the trial court to require an answer by appellee before proceeding to trial of appellant's claim.

Further, it would seem that if appellant entertained the conviction that said Rule 1-3 has the effect of necessitating an answer by the appellee, she might have brought such proposal to the attention of the trial court by requesting it to order or direct appellee to answer, or by refusing to go to trial without having the cause put at issue by an answer, or by entering upon the record her objection to...

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4 cases
  • Board of Com'rs of Marion County v. Board of School Com'rs of City of Indianapolis, 19340
    • United States
    • Court of Appeals of Indiana
    • April 28, 1960
  • Stalker v. Baptist Church in New Providence (Borden)
    • United States
    • Court of Appeals of Indiana
    • May 17, 1963
    ...depending upon the evidence may not be considered. Koeneman v. Aldridge (1954) 125 Ind.App. 176, 122 N.E.2d 345; O'Brien v. Fulwiler (1960) 130 Ind.App. 520, 166 N.E.2d 525; Rees v. Rees (1961) 131 Ind.App. 616, 172 N.E.2d 435. Thus, where the sole assigned error is the overruling of a moti......
  • Stone v. Stone, 19718
    • United States
    • Court of Appeals of Indiana
    • March 22, 1963
    ...by the appellate tribunal. Koeneman v. Aldridge (1954) (T.D.1955) 125 Ind.App. 176, 122 N.E.2d 345; O'Brien v. Fulwiler, Executor etc. (1960) 130 Ind.App. 520, 166 N.E.2d 525; Rees et al. v. Rees et al. (1961) 131 Ind.App. 616, 172 N.E.2d 435; § 2276, Flanagan, Wiltrout and Hamilton's, Indi......
  • State v. Long, 84A01-9012-CR-512
    • United States
    • Court of Appeals of Indiana
    • April 3, 1991
    ...trial court never reduced the order to a judgment. We will presume the trial court acted correctly in its actions, O'Brien v. Fulwiler (1960), 130 Ind.App. 520, 166 N.E.2d 525, and therefore assume that it had found justification for Floyd's failure to appear and that it appropriately postp......

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