Burkhart v. Simms
| Decision Date | 02 April 1945 |
| Docket Number | 17340. |
| Citation | 60 N.E.2d 141,115 Ind.App. 576 |
| Parties | BURKHART et al. v. SIMMS. |
| Court | Indiana Appellate Court |
Appeal from Probate Court, Vanderburgh County; F. Wendell Lensing Judge.
Action for conversion by William A. Simms, administrator of the estate of James M. Simms, deceased, against Roy S. Burkhart and another. Judgment for plaintiff, and defendants appeal.
Reversed with instructions.
Paul H. Schmidt, of Evansville, for appellants.
Edward A. Lorch, Wilbur F. Dassel, and Wm. D. Hardy, all of Evansville, for appellee.
This was an action for conversion instituted by appellee administrator, against appellants, who were the daughter and son-in-law of James M. Simms, deceased, wherein appellee alleged that appellants had taken possession of and unlawfully and without right appropriated and converted to their own use and benefit certain described personal property of the value of $2,200, of which said James M. Simms was the owner at the time of his death on August 18, 1941. The action was filed pursuant to the provisions of § 6-901, Burns' R.S. 1933, § 3098, Baldwin's 1934.
Upon issues joined, the cause was submitted for trial to the court, without the intervention of a jury. There was a special finding of facts and conclusions of law rendered thereon in favor of appellee and against both appellants. Judgment was rendered against appellants in the sum of $1,194.26, from which judgment this appeal is prosecuted.
The errors assigned in this court and relied upon for reversal are: (1) The court erred in overruling the joint and separate exceptions of appellants to each conclusion of law rendered by the court upon the special findings of fact; (2) that the court erred in overruling the separate motions for a venire de novo filed by each appellant; and (3) that the court erred in overruling the joint and also the separate motions for a new trial by the appellants.
The motions for a new trial assign as grounds therefor that the decision or finding of the court is not sustained by sufficient evidence and is contrary to law, which presents for review the sufficiency of the evidence to sustain the special findings of fact. Scott v. Collier, 1906, 166 Ind. 644-648, 78 N.E. 184.
The record discloses that the final judgment was entered on May 17, 1944, and that the motions for venire de novo were filed on June 15, 1944. It has been held a number of times by the Supreme Court of Indiana, as well as by this court, that a motion for venire de novo, to be effective, must be made before final judgment and, when not so made, no question is presented upon appeal. McCaslin v. State, 1906, 38 Ind.App. 184-188, 75 N.E. 844; Bennett v. Simon, 1899, 152 Ind. 490, 53 N.E. 649; Smith v. Biesiada, 1910, 174 Ind. 134, 90 N.E. 1009; Potter v. McCormack, 1891, 127 Ind. 439-440, 26 N.E. 883; Shaw v. Merchants, etc., 1877, 60 Ind. 83-94; Sloan v. Lick Creek, etc., 1893, 6 Ind.App. 584, 33 N.E. 997. Therefore, appellants' assignments of errors relative to overruling the motions for venire de novo present no question for our decision.
In considering the correctness of the conclusion of law, we are bound by the firmly-settled rule that an exception to a conclusion of law admits, for the purposes of the exception only, that the facts upon which such conclusion is based have been fully and correctly found. Works Pr., vol. 2, § 1609. However, this rule is limited by the further rule that the facts found must be within the issues formed by the pleadings. Thomas v. Dale, 1882, 86 Ind. 435-438; Clark v. State ex rel., 1918, 187 Ind. 276-283, 117 N.E. 965; Wills v. Mooney-Mueller, etc., 1912, 50 Ind.App. 193-199, 97 N.E. 449; Smith v. McDonald, 1912, 49 Ind.App. 464-468, 97 N.E. 556. Therefore, in the instant case it is proper that we look to the issues formed by the complaint and answer to determine whether or not the facts found in the special findings of fact are within the issues formed by the pleadings.
The complaint, omitting formal parts and signatures, reads as follows:
'William A. Simms, Administrator of the Estate of James M. Simms, Deceased, complains of the defendants and for cause of action says:
'1. That James M. Simms, departed this life intestate, on the 18th day of August, 1941, the owner of personal property, of the value of Two Thousand Two Hundred ($2,200.00) Dollars, consisting of money and property received by the decedent, or by the defendants for decedent's use, as follows, to-wit:
U. S. Government Bonds of the value of .. $ 750.00
Rent money from
Matt Sparks ................................. 20.00
Carol McCoy ................................. 25.00
Bob Wilkinson ............................... 33.00
Louis Johnson ............................... 36.00
Margaret Daniels ............................ 77.00
Earl Daugherty .............................. 12.00
Delbert Daugherty ........................... 77.00
Howard Wilkerson ............................ 20.00
John Lacer .................................. 33.00
1 Certificate of stock in the Lake
State Bank--value .......................... 100.00
Tobacco .................................... 190.00
Wheat ....................................... 60.57
Corn ....................................... 116.99
Cowpeas and Hay ............................ 100.00
Potatoes .................................... 20.00
Chickens .................................... 78.00
Tools and Farm Implements .................. 200.00
Tobacco Sticks .............................. 20.00
Lumber and Posts ............................ 50.00
Cash on note of Carl A. Carpenter ........... 35.00
---------
Total .................................. $2,053.56
'2. Plaintiff further says that the defendants have without right, claim or title to the same, or any part thereof, taken possession of and unlawfully and without right appropriated and converted said property to their own use and benefit, and have sold and disposed of part or all of said property.
'3. Plaintiff further says that the defendants refused and still refuse, though demand has been made by this plaintiff, as such Administrator, to account for, turn over and deliver said property or any part of the same or the value thereof.
Appellants' answer to this complaint, omitting formal parts, reads as follows:
'1. That said defendants separately and severally deny that they had in their possession, at the time of the filing of plaintiff's complaint herein, or that they have had at any time since, nor do they have now in their possession any of the property, or items mentioned in rhetorical paragraph 1 of plaintiff's complaint.
'That all of the items therein mentioned, of which the defendants or either of them may have had custody or possession, at the decedent's direction in his lifetime, were delivered to the plaintiff prior to the filing of the complaint in this proceeding.
'2. In answer to plaintiff's second rhetorical paragraph of complaint, the defendants separately or severally deny each and every allegation therein contained.
'Answering further, the defendants separately and severally aver that pursuant to the order of this Court, on 6 November, 1941, and subsequently, at oral examinations and hearing in open Court, the defendants in a cause docketed therein in the Vanderburgh Probate Court, as A.D. No. 6601, were fully examined by Court and counsel, regarding the averments of the complaint, with reference to said matters, and the Court declined to place sufficient credence in claims and assertions of plaintiff, to issue any order or make any finding in support of plaintiff's contentions.
'3. Answering plaintiff's third rhetorical paragraph the defendants separately and severally deny each and every allegation thereto, except they admit that plaintiff has made demands on these defendants, but in response thereto, incorporate herein the averments of rhetorical paragraph two (2) hereof.
Upon the issues thus joined the court found the following facts:
'1. The Court, at the request of the defendants, makes the following finding of facts in this cause and states conclusions of law thereon, as follows:
'2. James M. Simms, a widower, died intestate, 18 August, 1941, at the age of 85, at the home of the defendants, Roy S. Burkhart and Grace B. Burkhart, at 1731 South Morton Avenue, in the City of Evansville, Vanderburgh County, Indiana; that he was a resident of Vanderburgh County, at the time of his death.
'3. That William A. Simms was duly appointed and qualified as Administrator of the estate of James M. Simms, deceased, on the 22nd day of September, 1941, by the Vanderburgh Probate Court, and has since said day, and now is acting in that capacity.
'4. That James M. Simms, deceased, left surviving him as his sole heirs at law, William A. Simms, age 59, Son, 1664 South Garvin Street, Evansville, Indiana, and Grace B. Burkhart, age 56, Daughter, 1731 South Morton Avenue, Evansville, Indiana.
'5. James M. Simms had been a resident of Spencer County, Indiana, all his life, until coming to Evansville, in September, 1940. He had been a widower since 1935, when his wife died.
'6. That on or about September 29, 1940, James M. Simms was brought to Evansville, Indiana, by...
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