Daugherty v. Daugherty

• Decision Date: 17 November 1947
• Docket Number: 17589.
• Citation: 75 N.E.2d 427,118 Ind.App. 141
• Parties: DAUGHERTY et al. v. DAUGHERTY et al.
• Court: Indiana Appellate Court

75 N.E.2d 427

118 Ind.App. 141

DAUGHERTY et al. v. DAUGHERTY et al.

No. 17589.

Appellate Court of Indiana, in Banc.

November 17, 1947

Appeal from Whitley Circuit Court; Lowell L. Pefley, Judge.

C. W. H. Bangs and U. S. Lesh, both of Huntington, for appellants.

Sumner Kenner and Herbert B. Spencer, both of Huntington, for appellees.

ROYES Judge.

Appellants brought this action to set aside a deed to an 80-acre farm from Thomas B. Daugherty to the appellees Leroy and Thelma R Daugherty. This is the second appeal in this case. In the first appeal, Daugherty et al. v. Daugherty et al., 1944, 115 Ind.App. 253, 57 N.E.2d 599, we reversed the judgment of the trial court setting aside the questioned deed on the grounds the evidence was not sufficient to sustain the finding of the trial court that the deed was executed under such circumstances as subjected it to avoidance. The pleadings, with the exception hereinafter noted, were set out in our opinion on the former appeal. After the cause was remanded for new trial the venue was changed from the Huntington Circuit Court to the Whitley Circuit Court. In that court the appellees herein dismissed their cross-complaint. Appellants herein filed their written motion and request for trial by jury as to the issues tendered by their fourth paragraph of complaint. The trial court granted said motion and directed that such issues be tried subsequent to and after the issues presented by the first, second and third paragraphs had been tried and finally determined. Appellants then filed a supplemental motion asking that trial by jury be granted, also for the first three paragraphs of the complaint. This motion was overruled.

Upon proper request, the trial court made a special finding of facts and stated its conclusions of law thereon as follows:

'1. The law is with the defendants and that the plaintiffs herein take nothing by their amended complaint.

'2. That on June 28, 1941 on the date of the execution of the deed and contract described in Finding Number 14 that Thomas B. Daugherty, grantor in said deed, and who joined in said contract with defendants herein, was a person of sound mind and said deed and contract were not executed by said Thomas E. Daugherty while under any undue influence, nor were they procured through fraud'.

The errors assigned here are, that the trial court erred in each of its conclusions of law; error in overruling motion for a venire de novo; error in overruling motion for new trial; and error in overruling supplemental motion and request for trial by jury of Paragraphs 1, 2 and 3.

Appellants assert the facts found, as stated in the special findings herein, are such as to place on appellee the burden to show they exerted no undue influence in procuring the conveyance and that the absence of a finding freeing them of such undue influence and fraud amounts to a finding against them. They further state, because there was no finding that the deed was duly executed, it is equivalent to a finding against them. Therefore, they assert the trial court erred in its Conclusion of Law No. 1.

Appellants as plaintiffs in this action had the burden of proving the issues presented by their complaint. This burden never shifts. The burden of going forward with the evidence may shift during the trial. McAdams v. Bailey, 1907, 169 Ind. 518, 534, 82 N.E. 1057, 13 L.R.A.,N.S., 1003, 124 Am.St.Rep. 240; Fletcher Savings and Trust Company et al. v. American State Bank of Lawrenceburg, 1925, 196 Ind. 118, 147 N.E. 524; Krull v. Pierce et al., 1947, Ind.App., 71 N.E.2d 617. If the court did not find enough ultimate facts (or at least sufficient primary facts to necessitate the inference of such ultimate facts) to make out a case of fraud, we must assume they were not proved.

In this case the trial court made twenty-five findings of fact. They take up more than ten pages in appellants' brief. We do not deem it necessary to set them out in this opinion. In the first appeal of this case, Daugherty et al. v Daugherty et al., supra, 115 Ind.App. at page 266, 57 N.E.2d at page 604, we stated the rule in reference to special findings in this language: 'It is well established that: 'Ordinarily, it is the ultimate facts and not the evidentiary facts that should be stated in a special finding. But notwithstanding the well-settled rule that ultimate facts only should be found and that mere evidentiary facts will be disregarded the courts have held that where the primary facts found lead to but one conclusion, or where the facts found are of such a character that they necessitate the inference of the ultimate facts, such ultimate facts will be inferred and treated as found.' 2, Watson's Works...