Edwards v. Baker

• Decision Date: 11 June 1896
• Docket Number: 16,919
• Citation: 44 N.E. 467,145 Ind. 281
• Parties: Edwards v. Baker et al
• Court: Indiana Supreme Court

44 N.E. 467

145 Ind. 281

Edwards v. Baker et al

No. 16,919

Supreme Court of Indiana

June 11, 1896

From the Boone Circuit Court.

Affirmed.

T. J Terhune and P. H. Dutch, for appellant.

R. P Davidson and Artman & Lewis, for appellees.

OPINION

McCabe, J.

George Kernodle died testate, in Boone county, seized of certain lands therein, and leaving a widow, now Laura A. Neal, and children, Joanna, now Baker, William H., Charles and Jennie Kernodle, to each of whom he devised certain interests in his lands.

That afterwards, on December 13, 1888, said widow and children filed their complaint in the Boone Circuit Court against Thomas H. Martin, administrator de bonis non, with the will annexed of the said estate of said George Kernodle, deceased, and Addison B. Braden, seeking to set aside a mortgage for $ 400.00 on a part of said real estate, executed by said administrator to said Braden, under an alleged order of the Boone Circuit Court, to secure a loan made to said administrator by said Braden to be used in the payment of the debts of said testator.

That court sustained separate demurrers to said complaint by each defendant Martin and Braden for want of sufficient facts. Braden, the mortgagee, filed a cross-complaint against the original plaintiffs and Martin, administrator, seeking to foreclose his mortgage. The issues joined upon the cross-complaint, were tried by the court, resulting in a general finding in favor of cross-complainant Braden, and against the original plaintiffs and the administrator, upon which cross-complainant had judgment of foreclosure over a motion for a new trial. On March 27, 1891, said former widow and children filed a complaint to review said judgment, making a transcript of said judgment an exhibit to their complaint. They assigned the rulings upon the demurrer to their former complaint, the insufficiency of the facts stated in Braden's cross-complaint, and the denial of their motion for a new trial of the former suit as the errors upon which their complaint to review was based.

James G. Edwards, who was sheriff, and who executed the foreclosure decree by selling the lands to Braden at sheriff's sale, took an assignment of Braden's certificate of purchase, which he had executed to Braden; and Edwards, as appeared and on a showing of such facts, obtained leave of the circuit court to become a defendant in the complaint to review.

The court, trying the issue upon the complaint to review, made a special finding of the facts, upon which it stated conclusions of law, leading to judgment reversing the judgment to be reviewed as to all the parties except the widow, Laura A. Neal.

Many errors are assigned, but only one has been discussed by appellant's counsel, and that is the conclusion of law stated, that the cross-complaint of Braden did not state facts sufficient. All other alleged errors are deemed waived by such failure.

The transcript in this case is in such a condition that we would be fully justified in dismissing the appeal. It is so disjointed, confused, mixed, and imperfect that we doubt if ever so defective a transcript was presented to this court before, and certainly no case was ever decided upon its merits presented by such a transcript. It resembles more the trial of a man lost in a snowstorm on the prairie, traveling in a circle all night, than anything else. The conclusion of law assigned for error and discussed, requires an examination of the sufficiency of the cross-complaint of Braden.

As to the execution of the mortgage, the cross-complaint alleges "that on the 10th day of September, 1885, said Thomas H. Martin, as administrator de bonis non of the estate of George Kernodle, deceased, had pending in the circuit court of said county of Boone, in said State, his application to sell the southwest quarter of section 7, in township 19 north, range 1 west, in said county * * *; that in said proceedings, instead of selling said real estate, said Martin was ordered to mortgage said real estate to raise money to pay the debts of the estate of said George Kernodle, deceased; and, in pursuance of said order, said Martin mortgaged said real estate to this cross-complainant, Addison B. Braden."

The validity of this same order was brought before this court by the same administrator in Martin, Admr., v Neal, 125 Ind. 547, 25 N.E. 813. It was there said that: "The appellant Thomas H. Martin was appointed administrator de bonis non of said estate * * * and on the 27th day of February, 1884, filed a petition asking an order for the sale of all said farm, and that the proceeds remaining after the payment of debts be distributed to the devisees or invested in real estate as the court might direct. * * On the 26th day of June, 1885, * * * the court * * * made an order authorizing said administrator de bonis non to mortgage said real estate, and to take possession of and lease the same for a period not to exceed five years. Afterwards, on the 10th day of September * * * * the court * * * made an order authorizing the adminis trator to negotiate a loan at eight per cent. interest. * * * Afterwards the administrator reported the making of such loan, and the mortgage executed to secure the same, to ...