Brindle v. Anglin

Decision Date24 November 1964
Docket NumberNo. 20004,No. 1,20004,1
Citation202 N.E.2d 279
PartiesEarl BRINDLE, Appellant, v. Glen ANGLIN and Elmer H. Anglin, Appellees
CourtIndiana Appellate Court

Probst & Probst, Kendallville, for appellant.

Grimm & Grimm, Auburn, for appellees.

FAULCONER, Chief Justice.

This is an appeal from a judgment in which affirmative relief was awarded both plaintiff-appellant and defendants-appellees, and appellant has attacked only that part of the judgment awarding relief to appellees.

No brief has been filed by appellees. The rule in such case is that appellees' failure to file a brief may be deemed a confession of error, Meadows v. Hickman (1947), 225 Ind. 146, 147, 73 N.E.2d 343; Roth v. Vandalia R. Co. (1918), 187 Ind. 302, 304, 119 N.E. 1; Young et al. v. Schreiner (1959), 130 Ind.App. 39, 40, 161 N.E.2d 611; Wilson v. Wilson (1956), 126 Ind.App. 218, 222, 131 N.E.2d 658; and the case should be reversed if appellant's brief makes an apparent or prima facie showing of reversible error. Meadows v. Hickman, supra, at p. 147 of 225 Ind., 73 N.E.2d 343; Young et al. v. Schreiner, supra, at p. 41 of 130 Ind.App., 161 N.E.2d 611.

Appellant's only proper assignment of error is that the court erred in overruling his motion for new trial.

By his motion for new trial, appellant attacks as contrary to law and as not sustained by sufficient evidence that portion of the court's decision in favor of appellee, Glen Anglin, which consists of its Findings Nos. 2 and 4, and rhetorical paragraph 2, 4 and 5 of the judgment entered thereon. Appellant's additional grounds in his motion for new trial claim error in overruling both his motion to strike certain findings and his motion to modify the judgment; also error in awarding affirmative relief to appellee, Glen Anglin, on the affirmative paragraph of answer of appellees.

This action was commenced by the filing of appellant's complaint for replevin of a certain tractor, plow and accessories, to which appellees filed answer in two paragraphs, the first denying the allegations of appellant's complaint and the amended second pargraph of answer alleging compromise of the action. By the terms of the compromise agreement, a copy of which was made a part of appellees' second paragraph of answer, appellant was to deliver certain new farm machinery to appellee, Glen Anglin. The issues were closed by appellant's reply in two parapraphs admitting execution of a compromise agreement but alleging the same was signed by him under threats and duress and under 'mistaken idea of law and fact.' The second paragraph of reply alleged, inter alia, that no dispute ever existed between appellant and appellees subject to compromise.

The case was tried to the court without a jury, and the court entered its findings and judgment. Appellant filed his motions to strike findings and to modify judgment, both of which were sustained in part and overruled in part, and such findings and judgment, as modified, read as follows:

'The Court having heretofore taken this matter under advisement; and the Court having heard the evidence and the arguments of counsel and being duly advised in the premises now finds as follows, to-wit:

'1. For the plaintiff upon his complaint, that the allegations therein contained are true and proven; and that the plaintiff is entitled to the recovery of the farm machinery and implements described in plaintiff's complaint from the defendants; and that the plaintiff is entitled to recover from the defendants the sum of $325.00 as damages for the unlawful detention of said farm machinery and implements, described in plaintiff's complaint;

'2. For the defendant Glen Anglin upon the second paragraph of answer of said defendant to plaintiff's complaint; that said defendant Glen Anglin is entitled to the delivery by the plaintiff of the following items of new farm machinery and equipment, to-wit:

[Here is described one D-15 Allis Chalmers tractor and certain accessories.]

[Paragraph 3 deleted in its entirety.]

'4. That performance of the conditions of this finding and judgment by the parties hereto, shall be in full, final and complete adjudication of any and all controversies existing between the parties involving the farm machinery and equipment set forth in plaintiff's complaint, the farm amchinery [machinery] above described, and all other transactions between said parties tendered by the issues and/or evidence in this cause involving farm machinery and equipment, which have occurred prior to the date of this finding and judgment.

'IT IS THEREFORE CONSIDERED, ADJUDGED, DECREED AND ORDERED THAT:

'1. The plaintiff have and recover judgment against the defendant for the recovery of the farm machinery and equipment, described in plaintiff's complaint; and that the plaintiff have and recover judgment against the defendants in the sum of $325.00.

'2. The defendant Glen Anglin recover judgment against the plaintiff, and said defendant shall receive delivery from the plaintiff on the following described items of new farm machinery and equipment, to-wit:

[Here is described the Allis Chalmers tractor and accessories.]

[Paragraph 3 deleted in its entirety.]

'4. The performance of the conditions of this finding and judgment by the parties hereto, shall be in full, final and complete adjudication of any and all controversies existing between the parties involving the farm machinery above described, and all other transactions between said parties tendered by the issues and/or evidence in this cause involving farm machinery and equipment, which have occured [occurred] prior to the date of this finding and judgment; and

'5. The costs herein shall be divided equally between the parties hereto.'

It is appellant's contention that no issues were formed by the pleadings in this case upon which Findings Nos. 2 and 4 could be made and that the judgment based thereon is void.

It has often been held by this court and the Supreme Court that a judgment must conform to, and be supported by, the pleadings in the case, and to the extent it does not conform to the pleadings it may be beyond the jurisdiction of the court to the extent it exceeds this limitation. State ex rel. Surprise v. Porter Circuit Court (1948), 226 Ind. 375, 381, 80 N.E.2d 107; 17 I.L.E. Judgments Sec. 16, p. 151, and cases cited. It is not enough that facts are found in appelless' favor which, as here, are supported by evidence in the record. Unless it appears that the pleadings warranted a judgment in their favor, it cannot be sustained. Feder et al. v. Field et al. (1889), 117 Ind. 386, 390, 20 N.E. 129. The court cannot, any more than a jury, go outside the case made by the pleadings. Indianapolis Real Estate Board v. Willson (1934), 98 Ind.App. 72, 85, 187 N.E. 400. Suitors must recover secundum allegata et probata, or not at all. State ex rel. Surprise v. Porter Circuit Court, supra, at p. 381 of 226 Ind., 80 N.E.2d 107; Boardman et al. v. Griffin (1875), 52 Ind. 101, 106; Indianapolis Real Estate Board v. Willson, supra, at p. 85 of 98 Ind.App., 187 N.E. 400.

Judgments based upon issues not presented by the pleadings are coram non judice and, therefore, void. McFadden et al. v. Ross et al. (1886), 108 Ind. 512, 517, 8 N.E. 161; Fleser v. Aranjo (1954), 125 Ind.App. 160, 166, 123 N.E.2d 248.

It, therefore, becomes necessary to consider the nature of appellees' 'Amended Second Paragraph of Answer' on which the court's Findings Nos. 2 and 4 are founded. Such paragraph of answer, omitting formal parts, reads as follows 'Defendant's for a second and further paragraph of answer to plaintiff's complaint, allege and say:

'1. That heretofore on the 20th day of October, 1962, and subsequent to the filing of plaintiff's complaint, the parties hereto entered into and executed a written contract, by the terms of which the cause of action urged and contemplated by plaintiff's complaint herein was fully settled, compromised and adjusted; that a copy of such contract is attached hereto, made a part hereof by specific reference and labeled defendant's 'Exhibit A.'

'2. That the plaintiff has performed in part his obligations to defendants under the terms of said contract and defendants have tendered to plaintiff performance of their obligations under the terms of said contract and stand ready, willing and able to perform their obligations to plaintiff under the terms of said contract.

'WHEREFORE, defendants pray the Court that plaintiff take nothing by his complaint, and that they be accorded all other...

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3 cases
  • Brindle v. Anglin, 3--1172A84
    • United States
    • Indiana Appellate Court
    • 15 Mayo 1973
    ...of March 15, 1963 to the Appellate Court of Indiana. On November 24, 1964 that court rendered an opinion designated as Brindle v. Anglin, 202 N.E.2d 279 (1964). On transfer our Supreme Court, in a per curiam opinion, stated at 246 Ind. 601, 208 N.E.2d 'The opinion of the Appellate Court fai......
  • Fitzpatrick v. Kenneth J. Allen and Assoc.
    • United States
    • Indiana Appellate Court
    • 10 Septiembre 2009
    ...out of debt, duty, or contract, liquidated or not, held by the defendant at the time the suit was commenced." Brindle v. Anglin, 202 N.E.2d 279, 283 (Ind.Ct. App. 1964), trans. accepted on other grounds, 246 Ind. 601, 208 N.E.2d 476 (1965). The fact of the payment to Lewis does not constitu......
  • Thompson v. Abbett, 1--672A9
    • United States
    • Indiana Appellate Court
    • 18 Diciembre 1972
    ...is a counterclaim. State ex rel. Ziffrin v. Superior Court etc. (1961), 242 Ind. 246, 177 N.E.2d 898. See also: Brindle v. Anglin (1964), Ind.App., 202 N.E.2d 279. At the time of the original trial in this case, a counterclaim was statutorily defined '. . . any matter arising out of, or con......

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