Evans v. Rutherford, 10748.

• Decision Date: 18 May 1921
• Docket Number: No. 10748.,10748.
• Parties: EVANS v. RUTHERFORD.
• Court: Indiana Appellate Court

76 Ind.App. 366

131 N.E. 55

EVANS

v.RUTHERFORD.

No. 10748.^*

Appellate Court of Indiana, Division No. 1.

May 18, 1921.

Appeal from Circuit Court, Wells County; Wilson D. Lett, Special Judge.

Action by Ambrose Evans against Ira K. Rutherford. Judgment for defendant, and plaintiff appeals. Affirmed.

George Mock, of Bluffton, for appellant.

Simmons & Dailey, of Bluffton, for appellee.

BATMAN, J.

This is an action by appellant against appellee, begun in the Wells circuit court on April 16, 1918, to recover a judgment for the purchase price of certain real estate and to foreclose a vendor's lien therefor. The complaint on which the cause was tried consists of a single paragraph, to which an answer in three paragraphs was filed; the first being a general denial, the second a plea of payment, and the third setting up the six-year statute of limitation. A reply in general denial was filed to said affirmative paragraphs of answer. The issues were made before the regular judge of said court, but the trial was had before one Wilson D. Lett, acting as special judge. On the trial, the court, at request of appellee, made a special finding of facts, and stated its conclusions of law thereon, which finding is in substance as follows: On September 28, 1909, appellant conveyed and warranted to appellee a certain tract of land (describing it), for which the latter agreed orally to pay the former $100. On March 11, 1911, appellee sold and delivered to appellant a certain colt for the sum of $7, which amount it was agreed should be credited on the purchase price of said land. Prior to May 22, 1912, appellant authorized one Margaret Evans to receive payments on said purchase price in his behalf, and she did so receive from appellee the following amounts thereon: On May 22, 1912, $3.50, and on June 4, 1912, $1.50, making a total of $12 received by appellant from appellee on the purchase price of said land, and leaving a balance due thereon of $144. On these facts the court stated as its conclusions of law that appellant's claim is barred by the statute of limitation, that he take nothing by his action, and that appellee recover his costs. Appellant thereafter filed his successive motions for a restatement of the conclusions of law, for a new trial, and for judgment in his favor on the conclusions of law as stated, each of which motions was overruled, and judgment was rendered in favor of appellee. From this judgment appellant appealed, and has assigned errors which require a consideration of the questions hereinafter determined.

[1][2][3] Appellant contends that the court erred in overruling his motion for a new trial. The only reasons properly assigned therefor are that the decision of the court is not sustained by sufficient evidence, and is contrary to law. Rooker v. Ludowici, etc., Co. (1912) 53 Ind. App. 275, 100 N. E. 469. It is well settled that where a cause is tried by the court, and a special finding of facts has been made, pursuant to a request by either party, such finding is the decision of the court. Weaver v. Apple (1896) 147 Ind. 304, 46 N. E. 642. Appellant in presenting the first of said reasons has not challenged the correctness of a single fact found, and hence such reason need not be considered further. In support of said second reason, appellant asserts, in effect, that the conclusions of law on the facts found should have been differently stated, but since the assignment of such a reason for a new trial does not perform the office of exceptions to the conclusions of law, appellant has failed to show that such ground for a new trial exists. Weaver v. Apple, supra. There was no error in overruling appellant's motion for a new trial.

[4][5] Contention is also made that the court erred in stating each of its conclusions of law on the facts found, and in overruling his motions for a restatement of the conclusions of law, and for judgment in his favor on the conclusions of law as stated. A motion to restate conclusions of law is not recognized by our Code of Procedure. Maynard v. Waidlich (1900) 156 Ind. 562, 60 N. E. 348. The judgment rendered is in conformity with the conclusions of law stated. It follows that the court did not err in overruling either of said motions. The only questions presented, under appellant's contention that the court erred in stating each of its conclusions of law on the facts found, may be stated thus: Does the fact that appellee made payments to appellant on the purchase price of the land in question in the months of May and June, 1912, as found by the court, avoid the defense set up in appellee's third paragraph of answer, based on the six-year statute of limitation, in the absence of an affirmative paragraph of reply, pleading the fact of such payments? Based on the following authorities, we hold that this question must be answered in the negative: Kimberling v. Hall (1858) 10 Ind. 407;Conkey v. Barbour (1864) 22 Ind. 196;Fetrow v. Wiseman (1872) 40 Ind. 148;Strong v. State (1877) 57 Ind. 428;State ex rel. v. Parsons (1896) 147 Ind. 579, 47 N. E. 17, 62 Am. St. Rep. 430; 25 Cyc. 1415; 13 Encyc. P. & P. 238; Newdegate v. Early's Adm'r (Ky.) 49 S. W. 338; Coleson v. Blanton, 7 Tenn. (3 Hayw.) 152; Childress v. Grim, 57 Tex. 56;Moore v. Capps, 9 Ill. (4 Gilman) 315;Powers v. Schubert (Tex. Civ. App.) 220 S. W. 120;Goff v. Goff, 182 Ky. 323, 206 S. W. 466;Capen v. Woodrow, 51 Vt. 106;Willits v. Chicago, etc., R. Co., 80 Iowa, 531, 45 N. W. 916; McCarthy Bros. Co. v. Hanskutt, Ann. Cas. 1914D, note on page 892. Since an affirmative answer to said question would be necessary in order to sustain appellant's contention relating to the error of the court in stating its conclusions of law, we hold that such contention is not well taken.

[6] The record discloses that on November 17, 1919, more than 60 days after appellant's motion for a new trial had been overruled, and the judgment from which this appeal is taken had been rendered, appellant filed a motion, addressed to the regular judge of the Wells circuit court, asking that this cause be set for trial. This motion was based on the facts, as alleged therein, that there is no record showing that the regular judge of said court was disqualified to try said cause, or that Wilson D. Lett was appointed or qualified as a special judge to try the same. On December 12, 1919, appellee filed a motion by which he sought to have appellant's said motion stricken from the files. Following the filing of such motion, this entry appears:

“The court being related to the plaintiff herein, is disqualified to hear said cause, and the same, by agreement of the parties, is assigned to Wilson D. Lett to act as special judge herein. Comes now Wilson D. Lett, and assumes jurisdiction of this cause, and also files his written appointment in the words and figures as follows:” (Here follows appointment and oath.)

Appellant thereupon moved the court to strike out appellee's said motion. The rulings on said several motions were adverse to appellant, and such rulings are assigned as errors on appeal.

Questions with reference to...