Catherwood v. Morgan
| Decision Date | 14 February 1934 |
| Docket Number | 15,114 |
| Parties | CATHERWOOD ET AL. v. MORGAN, ADMINISTRATOR, ET AL |
| Court | Indiana Appellate Court |
Rehearing denied May 18, 1934.
Transfer denied November 1, 1934.
From Benton Circuit Court; Ralph C. McClurg, Special Judge.
Action by Wilbur F. Morgan, administrator, and others against Robert Catherwood and others. From the judgment rendered, plaintiff and certain defendants (cross-complainants) appealed, which judgment was reversed by the Appellate Court and remanded with instructions to trial court to restate its conclusions of law in harmony with Appellate Court's opinion and render judgment accordingly. (Morgan et al. v. Catherwood et al. [1932], 95 Ind.App. 266, 167 N.E. 618). From the judgment rendered in compliance with the mandate of the Appellate Court, defendants Robert Catherwood and wife took this appeal.
Appeal dismissed.
Otto Gresham, for appellants.
Dyer & Dyer and Fraser & Isham, for appellees.
From an examination of our records, we find that upon July 6, 1927 the transcript and assignment of errors in cause No. 13082 entitled Wilbur F. Morgan, Admr. v. Robert Catherwood et al., being an appeal from a judgment of the Benton Circuit Court was filed in this court. The only question for consideration presented by the appellant in that appeal, who is one of the appellees in this appeal, was based upon the present appellees' exceptions to the lower court's conclusions of law rendered upon a special finding of facts. There was no question raised upon the pleadings by demurrer or otherwise. There was no motion for a new trial, and the evidence was not in the record. After the filing of said cause No. 13082 in this court, the following among other proceedings, were had therein: August 29, 1929, the cause was reversed with instructions to restate the conclusions of law in harmony with the opinion of this court, and to render judgment accordingly. Morgan, Admr. v. Catherwood (1932), 95 Ind.App. 266, 167 N.E. 618. October 25, 1929, the appellees (appellants here) filed a motion to modify the judgment and mandate of this court. On the same day they filed a petition for rehearing. January 17, 1930, the motion to modify the judgment and mandate of this court was overruled and the petition for rehearing denied; February 13, 1930, appellees (appellants here) filed a petition for a transfer of cause No. 13082 to the Supreme Court; December 8, 1932, this petition was denied, and the clerk of the court in due time certified the cause to the Benton Circuit Court for further proceedings in compliance with the judgment and mandate of this court, pronounced August 29, 1929.
June 23, 1933, the Benton Circuit Court restated its conclusions of law, and rendered judgment thereon in harmony with the judgment and mandate of this court in said cause No. 13082.
From this judgment the appellants in this case, who were appellees in cause No. 13082, appeal to this court, assigning thirty-two alleged errors for reversal, all of which are summarized by counsel for appellants in their brief on the merits of this cause in the following language: All other alleged errors are waived.
The appellees have filed a motion to dismiss this appeal, upon the theory, briefly stated, that the appellants have already had their day in court in cause No. 13082, and are now endeavoring by this appeal, to obtain by indirection, what would amount to a rehearing in said cause No. 13082, for the purpose of nullifying the original opinion and judgment of this court in that cause and affirming the first and original judgment of the Benton Circuit Court.
Appellee's position is well taken. Appellants...
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