Elliott v. Gardner

• Decision Date: 20 February 1943
• Docket Number: 16895.
• Citation: 46 N.E.2d 702,113 Ind.App. 47
• Parties: ELLIOTT et al. v. GARDNER.
• Court: Indiana Appellate Court

46 N.E.2d 702

113 Ind.App. 47

ELLIOTT et al. v. GARDNER.

No. 16895.

Appellate Court of Indiana, in Banc.

February 20, 1943

Herrod Carr, and David A. Myers, both of Greensburg, for appellants.

Thomas E. Davidson, of Greensburg, and Frank H. Wolfe, of Shelbyville, for appellee.

FLANAGAN Presiding Judge.

This was an action to quiet title to certain real estate located in Decatur County, brought by appellee, Mary E. Gardner against appellants, Eldridge Elliott and Pearl Elliott. To appellee's complaint appellants filed an answer of general denial. Trial was to the court which found generally for appellee, that she was entitled to have her title quieted to the involved real estate, subject to any right-of-way the defendants may have across the land, and ordered judgment accordingly.

Appellants filed their motion for a new trial and asked the court to amend its finding and judgment under Rule 1--8 of the Rules of the Supreme Court. The court did amend its finding and judgment by adding to the finding that, "the defendants have the right to remove from said real estate within 90 days from this date, any building or buildings he may have erected thereon." The court also amended its judgment by adding the following: "And it is further considered and adjudged by the court that the defendant, Eldridge Elliott be and he is hereby given the right to remove from said real estate, within 90 days from this date, any buildings he may have erected thereon." It then overruled appellants' motion for a new trial.

Appellee then moved to modify the judgment by striking from it the above quoted words which the court had added. The motion was sustained and this appeal followed.

Appellee seeks to have the appeal dismissed for the assigned reasons that, (1) appellants' original briefs were not filed in time; and (2) the record does not show a final judgment in the court below.

In support of its first assigned reason appellee says that appellants brought their briefs to the state capitol building at about nine o'clock P. M. on the last day for filing at a time when neither the clerk of this court nor any of his deputies were present; that they gave the briefs to the night watchman who immediately put them in the office of the clerk.

This is in compliance with Rule 2--15 of the Rules of our Supreme Court. The last day given appellants for filing their briefs did not expire until midnight. Before that time they had the briefs in the proper place.

As to appellee's second assigned reason for dismissal she says that her motion to modify the judgment by striking out a certain part of it was sustained but that the trial court did not follow its ruling by entering a new judgment with the stricken part omitted. Appellee says that this in effect left no judgment standing. We cannot agree with such contention. When appellee's motion was sustained the effect was to strike out the words requested to be stricken out and to leave the rest standing as the final judgment of the court.

Errors assigned by appellants are: (1) Overruling of their motion for a new trial based upon insufficiency of the...