Bulen v. Pendleton Banking Co.

• Decision Date: 05 April 1948
• Docket Number: 17721.
• Citation: 78 N.E.2d 449,118 Ind.App. 217
• Parties: BULEN et al. v. PENDLETON BANKING CO. et al.
• Court: Indiana Appellate Court

78 N.E.2d 449

118 Ind.App. 217

BULEN et al. v. PENDLETON BANKING CO. et al.

No. 17721.

Appellate Court of Indiana, in Banc.

April 5, 1948

[Copyrighted Material Omitted]

Salyer & Cleveland, of Anderson, for appellants.

Clarence O. Davisson and Bagot, Free & Morrow, all of Anderson for appellees.

HAMILTON Judge.

The appellee, Pendleton Banking Company, as administrator of the estate of Anna E. Johnson, deceased, commenced this action by filing a petition in the Madison Circuit Court. In its petition said administrator prayed for an order of the court determining the ownership of a checking account carried in the Pendleton Banking Company in the name of 'Anna E Johnson and/or Anna V. Bulen' in the sum of $2,326.69, and asked for instructions as to the allocation of said fund.

The matter was submitted to the court for hearing upon said petition to which all of the heirs at law of said Anna E. Johnson, deceased, voluntarily appeared in person, and by counsel, and testified and submitted evidence as to the ownership of said fund. However, no answers or other pleadings were filed by any of said heirs. Appellant Anna V. Bulen requested a special finding of facts and conclusions of law.

The facts as found by the court, its conclusions of law, and judgment rendered thereon are as follows:

'(1) Anna E. Johnson died on the 11th day of February, 1945. At the time of her death she resided at 841 Broadway, Anderson, Indiana, with her husband, Charles H. Johnson.

'(2) She left surviving her as her sole and only heirs at law her husband, Charles H. Johnson, and her six children born to a previous marriage, to-wit: Neva L. Huntzinger, William Bousman, Raymond Bousman, Elva B. Widener, Gillette Bousman and Anna V. Bulen, all of whom were adults, married and one of whom lived with decedent.

'(3) That the said surviving husband, Charles H. Johnson, and decedent's six children, as well as Pendleton Banking Company, Administrator, have all appeared, participated in and given testimony in said hearing.

'(4) That Pendleton Banking Company is the duly appointed, qualified and action Administrator of decedent's estate, and is also the depository of decedent's checking account.

'(5) That decedent opened said checking account several years prior to her death, and that the checking account when first opened was opened in the name of Anna E. Johnson.

'(6) That on or about the 20th day of August, 1941 Anna E. Johnson had a balance in said checking account of approximately $500.00, and that on said date she changed the name of the account to Anna E. Johnson and/or Anna V. Bulen, and said account remained in said name until the death of the said Anna E. Johnson; that said charge was made for the purpose of convenience; that Anna E. Johnson resided in Anderson, Indiana, which is about ten miles from Pendleton, Indiana, where the Pendleton Banking Company is located, and due to her advanced years she was unable to look after her banking matters.

'(7) At the time of decedent's death there was on deposit in said checking account the sum of $2,326.69. The said Anna V. Bulen had not deposited any of her own funds in said account, nor had she ever exercised any control over said fund for her own benefit. All of her control over the fund had been at the direction of the said Anna E. Johnson, and for the benefit of decedent and her husband. All of the funds had originated from decedent's real estate or from the earnings of her husband.

'(8) There is a conflict as to what part of the funds deposited in said account were the proceeds from decedent's farm, and what part were the proceeds from the earnings of Charles H. Johnson, husband of said decedent. Many of the Bank's statements which had been issued to the depositor had been mutilated by blotting out or cutting off the name of Anna V. Bulen. This had been done to prevent the husband, Charles H. Johnson, from knowing the name in which the account was carried with said Bank. The said Charles H. Johnson was under the impression that the account was carried in the name of Anna E. Johnson and Charles H. Johnson. It is not necessary, however to this case, to determine whether or not Charles H. Johnson was the owner of said account or any interest therein due to the fact that he stated that it was satisfactory to him for the fund to be declared an asset of decedent's estate.

'(9) Anna V. Bulen claims the fund as her sole property upon the death of decedent. The surviving husband and four of the children made claim to the fund as an asset of the estate.

'Upon the facts thus found the Court concludes that the said fund in the sum of $2,326.69 on deposit in said account in the Pendleton Banking Company was the property of decedent at the date of her death, and as such, is now an asset of her estate in the hands of the said Pendleton Banking Company as Administrator of decedent's estate.

'It Is Therefore Considered, Adjudged and Decreed by the Court that Pendleton Banking Company, Administrator of the estate of Anna E. Johnson, deceased, be and it is hereby ordered to hold said account as an asset of the estate of Anna E. Johnson, deceased, and to make due accounting thereof in the administration and settlement of said decedent's estate, all as provided by the law of the State of Indiana in the settlement of estates by Administrators.'

The errors properly assigned in this court are: (1) The court erred in each of its conclusions of law; and (2) the court erred in overruling appellants' motion for a new trial. The other errors attempted to be assigned independently in this court constitute reasons or grounds proper to be assigned in the motion for a new trial and present no question when assigned independently as erorrs upon appeal. Grand Rapids Motor Express v. Crosbie, Ind.App. 1947, 69 N.E.2d 247, 249, 250; State v. Brubeck, 1932, 204 Ind. 1, 3, 170 N.E. 81.

Appellants motion for a new trial contains 27 specifications. Specifications 9 to 24, inclusive, allege error in admitting in evidence, over appellants' objections, certain evidence. However, appellants' motion for a new trial does not set out the specific questions propounded to the witness, the objections made thereto, the court's ruling thereon, or the answer thereto, although the substance of such answer is stated. The rule is firmly settled in this state that in order to present any questions for review upon appeal in the admission or rejection of evidence, the motion for a new trial must set out the question propounded, the objection, if any, which was made, the court's ruling thereon, and the answer of the witness, or the substance of such matters. Johnnie J. Jones Exposition v. Terry, 1945, 116 Ind.App. 189, 195, 63 N.E.2d 159; Baltimore & O. R. Co. v. Pertics, 1943, 112 Ind. App. 674, 679, 46 N.E.2d 251; Greer v. State, 1929, 201 Ind. 386, 388, 168 N.E. 581; Brown v. State, 1939, 216 Ind. 106, 108, 23 N.E.2d 267.

For the reasons stated, we must hold that no question is presented for our consideration by said specifications 9 to 24, inclusive, of appellants' motion for a new trial.

Specification 7 of the motion for a new trial alleges that the conclusions of law upon the special findings of facts are contrary to law.

It has been repeatedly held that the correctness of a conclusion of law can be challenged only by proper exception to such conclusion and by assigning as error in the appellate court that the trial court erred in the conclusion of law which it is desired to challenge. Minter v. Bittler, Receiver, 1941, 108 Ind.App. 522, 524, 29 N.E.2d 799; Morsches-Nowels Lumber Co. v. Pence, 1939, 106 Ind.App. 219, 18 N.E.2d 958; Mertz, Adm'r v. Wallace, 1931, 93 Ind.App. 289, 169 N.E. 333; Mullahy v. City of Fort Wayne, 1932, 95 Ind.App. 229, 179 N.E. 563.

The same question is presented by appellants' assignment of error No. 6 and will be considered later.

Specification 8 of the motion for a new trial alleges: 'Error of law occurring at the trial and excepted to by those defendants and heirs at law in this: that the Court over their objections and exceptions forced and ordered these defendants and heirs at law to offer and submit their evidence at the conclusion of what evidence the Pendleton Banking Company, Administrator of the estate of Anna E. Johnson, deceased, offered in support of its petition for instructions when the Court should have ordered the other parties designated as heirs at law, Charles H. Johnson, William Bousman, Raymond Bousman, Elva B. Widener and Neva L. Huntzinger, to submit their evidence if they had any in support of Pendleton Banking Company, administrator of the estate of Anna E. Johnson, deceased, on its petition for instructions, so and by reason of this error of law these heirs and defendants were harmed and justice was not done between the parties.'

It is well settled that the order in which testimony is introduced in the trial of a cause is so largely in the discretion of the trial court that objections to the order of introduction of evidence will not constitute reversible error unless such discretion is clearly and manifestly abused. Heilman v Shanklin, 1878, 60 Ind. 424, 450, 451; Harbison v. Boyd, 1911, 177 Ind. 267, 277, 96 N.E. 587; Miller v. Coulter, 1901, 156 Ind. 290, 295, 59 N.E. 853; Miller v. Dill, 1898, 149 Ind. 326, 335, 49 N.E. 272. In the instant case the cause was being tried to the court without a jury and for this reason alone the above rule was especially applicable. It is apparent from the record that the case was tried below on the theory that appellants had the burden of proof upon the issue of the ownership of said funds. It affirmatively appears from the record that the trial court required her to offer her evidence in support of her claim to said funds and...