Cornet v. Guedelhoefer
| Decision Date | 07 December 1940 |
| Docket Number | No. 16152.,16152. |
| Parties | CORNET et al. v. GUEDELHOEFER et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Marion County; Smiley Chambers, Judge.
Proceeding in the matter of the estate of Pauline Guedelhoefer, wherein John Cornet, Jr., and another filed exceptions to the final report of John Guedelhoefer, executor of the last will and testament of Pauline A. Guedelhoefer, deceased. Judgment overruling the exceptions, and exceptors appeal.
Reversed with instructions.Samuel J. Mantel, Paul G. Davis, Frank B. Ross, and Robert S. Smith, all of Indianapolis, for appellants.
Wymond Beckett and George & Ryan, all of Indianapolis, for appellees.
DE VOSS, Judge.
On the 11th day of February, 1934, Pauline Guedelhoefer executed her will, and among other provisions herein appointed John Guedelhoefer as executor thereof. On the 1st day of March, 1935, said Pauline Guedelhoefer died. Thereafter said will was probated in the Marion Probate Court and John Guedelhoefer qualified as executor and proceeded in the execution of said will. Said John Guedelhoefer, executor and appellee herein, filed his final report in the Probate Court of Marion County on March 6, 1937.
The appellants herein filed exception to such final report and asked that said report be disapproved for reasons that will be hereinafter set out. The matter of the final report and the exception thereto was set down for a hearing by said Probate Court of Marion County, and after hearing the evidence therein, said court found for the appellee John Guedelhoefer, trustee herein, that said estate had been fully administered, approved said final report and discharged said executor from his trust. The appellants herein, John Cornet, Jr., and Madalyn Cornet, filed their motion for a new trial, which motion was by the court overruled and this appeal follows.
Appellants have separately and severally assigned as error the overruling of their separate and several motion for a new trial.
The specific reasons assigned in the motion for a new trial are as follows:
(1) The finding of the court, in the objections and exceptions filed by these exceptors to the final report of John Guedelhoefer, executor of the last will and testament of Pauline Guedelhoefer, deceased, is not sustained by sufficient evidence, and is contrary to law.
(2) The decision of the court in overruling the objections and exceptions filed by these exceptors to the final report of John Guedelhoefer, executor of the last will and testament of Pauline Guedelhoefer, deceased, is not sustained by sufficient evidence.
(3) The decision of the court in overruling the objections and exceptions filed by these exceptors to the final report of John Guedelhoefer, executor of the last will and testament of Pauline A. Guedelhoefer, deceased, is contrary to law.
(4) The court erred in approving the final report of John Guedelhoefer, executor of the last will and testament of Pauline Guedelhoefer, deceased, for the reason that the distribution made by said executor of the assets of the estate of said Pauline Guedelhoefer, as shown by said final report, is contrary to law.
One of the appellees herein, John Guedelhoefer, on May 29, 1939, filed a verified answer in bar of this appeal and a motion to dismiss the same for the reason that appellants herein on the 25th day of January, 1938, pending the appeal of this cause, conveyed an undivided 1/16 part of two tracts of real estate and also an undivided 1/8 part of another tract of real estate devised in the will of Pauline Guedelhoefer to said appellants. Said transfer, as alleged in said motion, was subject to all existing liens and encumbrances. It is further set out in said motion that the undivided interests of appellants in said real estate was by the judgment of the trial court subject to a lien of $7,233.12, and that by reason of such transfer appellants voluntarily acquiesced in said judgment and took possession of the real estate devised to them, collected the rents thereon and paid the taxes thereon, and sold and conveyed, by warranty deed a part thereof for their individual benefit, subject to the lien on said real estate fixed by said judgment and that they are thereby estopped from denying the legality of said judgment, and estopped from further prosecuting this appeal.
The record discloses that on December 28, 1937, an assignment of errors was filed in this court; that appellants' briefs in support thereof were filed on January 27, 1938; that on February 23, 1938, John Guedelhoefer, executor, filed his motion to dismiss this appeal, and on February 24, said executor filed his petition for an extension of time to file brief; that said motion for an extension of time stated among other things that, “all motions to dismiss and all dilatory motions on behalf of the petitioner had been filed.” This petition for an extension of time was granted, and thereafter said motion to dismiss was overruled and said executor filed his answer brief on April 28, 1938, and appellants on May 12, 1938, filed their reply brief.
[1] It is insisted by appellants that by the filing of said motion for an extension of time, appellee has waived his right to file this motion in bar and to dismiss this appeal.
Rule 17 of the Rules of the Supreme and Appellate Courts in effect at the time of the filing of said motion for an extension of time provided among other things that: “When filed by the appellee the petition shall show that all motions to dismiss and all dilatory motions on behalf of the petitioner have been filed.”
It has been determined by this court and the Supreme Court of Indiana that the filing of such petition for an extension of time by appellee is a waiver of the right to file a motion to dismiss. M. W. Simpson Lumber Co. v. Harmon, 1922, 77 Ind.App. 659, 134 N.E. 492; White v. White, 1935, 208 Ind. 314, 194 N.E. 355, 196 N.E. 95; Temple v. State, 1916, 185 Ind. 139, 113 N.E. 233.
It appears from the verified motion in bar and to dismiss that the first information appellees received or the first knowledge they had that title to the said real estate had been conveyed in part was on December 15, 1938, approximately ten months after the filing of their petition for an extension of time to file brief, and that said deed was not recorded until July 15, 1938, approximately six months after the filing of such petition.
It is contended by appellees that a reasonable construction of the rules of this court should not bar them from presenting the questions raised by said motion in bar on their merits.
It is apparent that at the time the petition for an extension of time was filed by appellees such deed was not on record and said appellees had no information relative to such transfer, and consequently it is our conclusion that under a reasonable construction of the rules of this court, the filing of such petition would not be a waiver of their right to file such motion in bar and to dismiss, and to have the same determined on the merits of said petition.
Sec. 2-3201, Burns' Revised Statutes 1933, Sec. 471, Baldwin's Ind.Statute 1934, provides among other things that: “The party obtaining judgment shall not take an appeal after receiving any money paid or collected thereon.”
The questions involved on this appeal do not arise on any issue relative to the title to the land devised in the will, neither is the matter of the construction of the will involved. All matters in controversy arise on exceptions to the final report, and the only question to be determined, relative to the real estate, was whether or not the real estate should pass under the will, burdened with the payment of the general legacies.
Sec. 2-3201, Burns', supra, is the general rule recognized by the courts, and one of the outstanding reasons therefore seems to be that a party should not be permitted to assume inconsistent positions; that he should not accept benefits under a judgment which, in the event of its reversal, will give him an undue advantage over the adverse party.
[2] When the reversal of the judgment cannot possibly affect appellant's right to the benefit he has secured under the judgment, then an appeal may be taken and will be sustained despite the fact that appellant has secured such benefits.
In the application of the rule, courts have recognized some exceptions. The rule therefor that a party cannot maintain an appeal to reverse a judgment after having accepted payment thereof, in whole or in part, does not apply when the appealing party is shown by the record to be so absolutely entitled to the sum collected or accepted that a reversal of the judgment would not in any way affect his right to the accepted, as in the case of the acceptance of an admitted or uncontroverted part of the sum demanded or in other like cases. City of Indianapolis v. Stutz Motor Car Co., 94 Ind.App. 211, 180 N.E. 497, and other cases cited therein.
[3] In the instant case it is apparent from the record that appellants are entitled to the real estate devised to them, subject only to the payment of debts and a transfer by appellants of an undivided portion thereof subject to all existing liens and encumbrances is not such an acquiescencein the judgment as would warrant dismissal of this appeal.
Appellees have criticized the brief of appellants and raised the question of its sufficiency. Without discussion thereof, we are of the opinion that a good faith effort has been made to present the questions involved, and that the same are presented by appellant's brief.
To reach a conclusion of the questions raised by the exceptions filed to the final report by appellants herein, it will be necessary to consider the will of said Pauline Guedelhoefer, and said will, omitting the formal parts, reads as follows:
“I, Pauline A. Guedelhoefer, of Indianapolis, Indiana, being of sound and disposing mind and memory, and desirous of making a disposition of my...
To continue reading
Request your trial