Carr v. Besse
| Decision Date | 01 May 1924 |
| Docket Number | 11,792 |
| Citation | 143 N.E. 639,82 Ind.App. 124 |
| Parties | CARR v. BESSE ET AL |
| Court | Indiana Appellate Court |
Rehearing denied November 12, 1924.
From Benton Circuit Court; Burton B. Berry, Judge.
Action by Henry J. Carr against Mayme Besse and others. From a judgment for defendants the plaintiff appeals.
This action was instituted by Henry J. Carr against Mayme Besse Howard Besse and Margaret Ellen Ward. It is averred in the complaint that Mayme Besse and Howard Besse were indebted to the plaintiff on a promissory note; that at the time they executed the note they owned certain real estate; and that thereafter they executed a deed whereby they conveyed their real estate to Margaret Ellen Ward with intent to defraud the plaintiff. The prayer of the complaint is for judgment on the note; that the deed be set aside; and that the real estate be subjected to the payment of the plaintiff's claim. The defendants filed an answer in denial. The trial resulted in a finding for the plaintiff on the note, and a further finding that the conveyance alleged to be fraudulent was in truth not a deed but a mortgage and that it should not be set aside. On April 21, 1923, judgment was rendered in accordance with the finding; and on the same day the plaintiff filed a motion for a new trial. On May 28, 1923, the plaintiff filed a petition asking leave to file a supplemental complaint. The petition was denied. Thereupon the plaintiff presented to the court the document which he desired to file as a supplemental complaint; but the court made no further ruling at that time. On June 11, 1923, the plaintiff again presented the document which he desired to file as a supplemental complaint, and the court refused permission to file it. On June 18, 1923, the motion for a new trial was overruled. Thereupon the plaintiff filed a motion to modify the judgment in the following particulars: (1) To "show to whom and to secure what debt the deed sought to be set aside, obtained as a mortgage"; (2) to show "what amount of money the deed is adjudged to be a mortgage to secure." The motion to modify was overruled.
The material averments of the proposed supplemental complaint are the following:
"That the trial commenced on April 5, 1923, and was concluded on April 12, of the same year; that on the last named date and while the court had the cause under advisement, the defendants Mayme Besse and Howard Besse executed to the defendant Margaret Ellen Ward an instrument in writing purporting to be a deed; that thereby the grantors therein attempted to convey the identical real estate involved in the litigation; and that the pretended conveyance appears in the record of deeds of Benton County."
The prayer is that the instrument be set aside.
The assignment of errors challenges the action of the court (1) in refusing to leave to file the supplemental complaint; (2) in overruling the motion to modify the judgment; and (3) in overruling the motion for a new trial.
Affirmed.
Fraser & Isham, for appellant.
Elmore Barce and J. Edward Barce. for appellees.
The plaintiff did not have an absolute right to file a supplemental complaint. Under the Code it was within the discretion of the trial court to grant or refuse leave to file the proposed pleading. § 408 Burns 1914, § 399 R. S. 1881; 1 Watson, Revision Works Practice § 861 et seq. That is the general rule. 21 R. C. L. 503; 31 Cyc 502.
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