Combs v. Combs
| Decision Date | 03 July 1914 |
| Docket Number | 8347 |
| Citation | 105 N.E. 944,56 Ind.App. 656 |
| Parties | COMBS v. COMBS |
| Court | Indiana Appellate Court |
From Knox Circuit Court; Orlando H. Cobb, Judge.
Action by Albert Combs against Asa Combs and others. From the judgment rendered, the defendant named appeals.
Reversed.
S. J Gee and S. M. Emison, for appellant.
Louis A. Meyer and Clarence B. Kessinger, for appellee.
Appellee filed a complaint against appellant Asa Combs, Esther Rosella Mills, Sadie Lent, Mary Morrell, Stella Lomax, L. Mary Thomas and Arthur Combs, but only obtained service of process on Asa Combs and Arthur Combs.
The complaint, in one paragraph charges in substance, that Eunice Combs, mother of the parties to this suit, had previously sued Albert Combs on account for money had and received; that a compromise of said suit was made and an agreement in writing was entered into by Albert Combs and all the defendants named originally in the complaint in this case; that all powers of attorney previously given by said Eunice Combs to her sons, Albert Combs and Asa Combs, were to be revoked and a power of attorney was to be executed by said Eunice Combs to one Charles F. Breen, who was to collect all money due said Eunice Combs and distribute the same as the said agreement provided; that at the death of Eunice Combs her property was to be equally divided among her children, the parties to said agreement; that Albert Combs had made an accounting and had turned over $ 1,700 in full and final settlement of his accounts with his mother, Eunice Combs, and with all of her said children; that a certain automobile then in the possession of Albert Combs should be turned over to his mother; that Asa Combs under his power of attorney was to settle with the heirs of Eunice Combs. It is further alleged that at the time it was verbally agreed between Asa Combs, acting as attorney in fact for Eunice Combs, and by Gee & Emison as attorneys of record for Eunice Combs, that upon the payment by Albert Combs of the sum of money provided in said written agreement, the suit then pending between Eunice Combs and Albert Combs should be dismissed and all matters in controversy in that suit should be deemed settled on the basis set forth in said written agreement; that it was then and there agreed by Asa Combs and Gee & Emison, acting in their respective capacities, that said agreement in writing should be in full force and effect and binding on Eunice Combs and that she should perform on her part all the agreements and undertakings to be performed by her as set forth in said written agreement; that after the execution of said written agreement, Albert Combs paid to Asa Combs and to said S. J. Gee and Samuel M. Emison, as attorneys for all the parties to said agreement and also as attorneys for Eunice Combs, the sum of $ 1,700 and thereupon said suit was dismissed by Eunice Combs and the costs and attorney fees in said suit were paid out of said $ 1,700; that the remainder of said money was retained by said S. J. Gee and Samuel M. Emison for the purpose of turning the same over to the parties entitled to the same, pursuant to the verbal and written agreement entered into by and between said parties; that plaintiff is now and at all times has been ready and willing to perform the remaining conditions set forth in said agreements but that defendants have wholly failed to perform their part of the agreements; that the defendants have refused to return to plaintiff the sum of money so paid over by him as aforesaid, and still hold the same; that by reason of the foregoing facts plaintiff had been damaged in the sum of $ 3,000, for which he demands judgment. The written agreement referred to in the complaint and made a part of the same by exhibit was signed by appellant and appellee and all the other children of said Eunice Combs, but was not signed by her. Appellant and his codefendant, Arthur Combs, separately answered the complaint by general denial.
The case was tried by a jury which found for the defendant Arthur Combs, and against appellant, Asa Combs, in the sum of $ 1,527.59. Appellant's motion for a new trial was overruled and judgment was rendered on the verdict against appellant, and in favor of Arthur Combs for costs. The errors assigned are: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling the motion for a new trial.
The record discloses that the original complaint was filed on May 11, 1911, and the amended complaint on which the cause was tried was filed on November 13, 1911. In all actions commenced on or after April 21, 1911, an independent assignment of error "that a complaint does not state facts sufficient to constitute a cause of action" presents no question for decision, because of the failure to comply with the statute. Acts 1911 p. 415, § 348 Burns 1914; Stiles v. Hasler (1914), 56 Ind.App. 88, 104 N.E. 878; Robinson v. State (1912), 177 Ind. 263, 266, 97 N.E. 929.
The only questions presented by the briefs on the overruling of the motion for a new trial are those arising under the alleged causes, that the verdict is not sustained by sufficient evidence and that it is contrary to law. The cause for a new trial that the decision or verdict is contrary to law, presents such errors, occurring at the trial as have been carried into the verdict, or decision. Berkey v. Rensberger (1912), 49 Ind.App. 226, 230, 96 N.E. 32. If there is no evidence to support a verdict or finding, or if there is no evidence to support any fact essential to such verdict or finding, then such finding or verdict is an error of law which may be reviewed and corrected on appeal. Deal v. State (1895), 140 Ind. 354, 359, 39 N.E. 930; Jennings v. Ingle (1905), 35 Ind.App. 153, 155, 73 N.E. 945; Robinson Mach. Works v. Chandler (1877), 56 Ind. 575, 583.
The proceedings in this case are novel in character. From an examination of the briefs and the evidence it appears that the compromise agreement of the suit by Eunice Combs against Albert Combs was carried out to the extent of the payment...
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