Daily v. Smith
| Decision Date | 11 January 1918 |
| Docket Number | No. 9457.,9457. |
| Citation | 118 N.E. 312,66 Ind.App. 393 |
| Parties | DAILY v. SMITH. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; W. W. Thornton, Judge.
Action by Mary B. Daily against Alvie O. Smith. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Charles T. Hanna and Thomas A. Daily, both of Indianapolis, for appellant. Solon B. Selleck, of Indianapolis, for appellee.
This is an appeal from a judgment of the Marion superior court in appellee's favor in an action in replevin begun by appellant before a justice of the peace for the recovery of certain counters, bins, etc., alleged to be the property of the plaintiff. There was a trial by the court, with a special finding of facts and conclusions of law. A motion for a new trial filed by appellant was overruled. The errors assigned and relied on for reversal challenge (1) “the conclusions of law stated upon the finding of facts,” and (2) the ruling on said motion. The motion for a new trial contains seven separate grounds. Under the heading “Points and Authorities” in appellant's briefs, “Propositions” numbered from 1 to 6, inclusive, are stated.
[1] Appellant nowhere under her points and authorities applies said propositions to either of said assigned errors, nor is either of said propositions addressed to any particular decision or ruling of the court challenged by either of such assigned errors. The argument will not be looked into to supply this omission. Pittsburgh, etc., R. Co. v. Greb, 34 Ind. App. 625, 73 N. E. 620;Moore v. Ohl, 116 N. E. 9;Evansville, etc., Co. v. Hoffman (No. 9466) 118 N. E. 151, and cases cited.
It follows that no question is presented by said propositions unless the court can say that the particular wording of one or more of them is such as to indicate with sufficient certainty the ruling to which it is intended to apply, in which case the court may consider the question or questions so presented. Low v. Dallas, 165 Ind. 392, 394, 75 N. E. 822;German Fire Ins. Co. v. Zonker, 57 Ind. App. 696, 703, 704, 108 N. E. 160;Town of Newpoint v Cleveland, etc., Ry. Co., 59 Ind. App. 147, 150, 107 N. E. 560. Said propositions are as follows:
“Proposition 1. The term ‘fixtures' ordinarily is construed to mean articles annexed to the realty, unless it appears to have been intended to have some other meaning. In the divorce decree between Virdie Smith and Alvie O. Smith, the defendant herein, it clearly appears that the word ‘fixtures' was meant to apply to the store appliances of Alvie O. Smith which were not a part of the realty then owned and mortgaged by Alvie O. Smith and Virdie Smith as tenants by the entireties.
Proposition 2. Trade fixtures, attached to the realty, upon a conveyance of the realty, in the absence of an express reservation, pass to the vendee.
Proposition 3. The counters, shelves, bins, and screen doors, having been placed in and attached to the storeroom by the owners to enable them to use or rent it to a better advantage, and being essential for the purpose for which the building was used, became a part of the realty upon a conveyance to the vendee.
Proposition 4. Alvie O. Smith abandoned his lease of said storeroom at the time he sold his undivided one-half interest therein, continued in possession and accepted a new lease, thereof from Mary B. Daily, in which no provision was made for the removal of the fixtures attached to the building, and thereby abandoned his right thereto.
Proposition 5. The failure of the court to set out in his special finding of facts the lease, introduced in evidence by the plaintiff, or to find that the defendant, Alvie O. Smith, did not reserve at the time of the execution of the new lease the right to remove any of the fixtures then attached to the building at the expiration of said lease, or to find any other material fact, was error.
Proposition 6. Failure of the court to find facts correctly is cause for a new trial.”
[2] We find among the grounds of the motion for new trial that numbers 6 and 7, supra, respectively challenge as error the action of the court “in failing to set out in its special findings the terms of the lease and leases referred to in the court's special finding *** thirteen,” and “in failing to set out in its special findings *** that by the terms of the lease and leases referred to in *** finding *** thirteen *** the defendant, Alvie O. Smith, in said lease and leases, did not reserve any of the fixtures involved in this action.”
The wording of propositions 5 and 6, supra, would indicate that they are addressed to these grounds of said motion. Giving appellant the benefit of the assumption that said propositions were to apply to said grounds of the motion for new trial, they can be of no avail for the following reasons:
(1) It is not the office of a special finding of facts to set out the evidence, either written or oral, but it should contain instead the ultimate facts proven by the evidence pertinent to and proper under the issues tendered by the pleadings. Cottrell v. Nixon, 109 Ind. 378, 381, 383, 10 N. E. 122;Bolton v. Clark, 162 Ind. 471, 68 N. E. 283;Trustees, etc., v. Shoemaker's Estate, 20 Ind. App. 319, 50 N. E. 594.
[3] It should not be understood from what we have just said that it is necessarily improper to set out an instrument or writing in a special finding, or that, when set out, it may not take the place of a finding of the ultimate fact; but such fact itself is the appropriate and necessary element of a special finding, and the evidence of such fact, whether written or oral, is not required to be set out in the finding, and, when set out, will not take the place of the ultimate fact, except where it necessitates the...
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