Everhart v. Cooper

Citation200 N.E. 705,102 Ind.App. 1
Decision Date30 March 1936
Docket NumberNo. 15210.,15210.
PartiesEVERHART et al. v. COOPER et al.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from Delaware Circuit Court; L. A. Guthrie, Judge.

Divorce action by Aletha Elva Cooper against Taylor Cooper, wherein John E. Everhart and others filed motion for an order vacating entry of dismissal and for judgment nunc pro tunc on finding made by court in such action. From a judgment overruling such motion, John E. Everhart and others appeal.

Affirmed.

Francis A. Shaw, of Muncie, for appellants.

O'Neill & Bales, of Muncie, for appellees.

DUDINE, Judge.

On March 13, 1930, Aletha Elva Cooper filed her complaint against appellee Taylor Cooper for divorce. Service was had upon him, and on May 22, 1930, on agreement of parties, the court ordered him to pay to the clerk of the court the sum of $50 for attorney's fees for plaintiff's attorney. On June 14, 1930, the defendant was defaulted, and the prosecuting attorney filed an answer of general denial. The court, having heard the evidence, wrote the following minutes in his bench docket: July 31, 1930. Evidence concluded. Finding for Plff, that alleg. of complt are true; that Plff. is entitled to a divorce from deft. Order for atty fees continued in force until discharged.”

The order book entry as of that date is as follows: “Come now the parties and this cause is now for trial submitted to the Court and the evidence is heard and the court finds for the plaintiff that the material allegations of her complaint are true, and that she is entitled to a divorce from said defendant on the grounds alleged in the complaint. The court orders that all orders heretofore made for the payment of suit and support money continue in full force and effect until the same has been discharged.”

Immediately following said minute on the judge's docket, the judge wrote the following minute:

December 22, 1930. It being shown to the satisfaction of the court that the plff is deceased, this cause is dismissed.”

The order book entry of that date is in accordance with said minute.

Aletha Elva Cooper was in fact killed in an automobile accident on October 8, 1930. At the time of her death she was the holder of insurance policies payable to her estate. Appellee Delaware County National Bank was appointed administrator of her estate, and as such administrator collected $4,815.79 on said policies.

Appellants are the father, sisters, and children of a deceased brother of said decedent.

On May 7, 1931, appellants instituted a suit against appellees praying “that plaintiffs be declared entitled to inherit in said estate in the shares provided by law to the exclusion of the defendant Cooper.”

The complaint alleged that on July 31, 1930, when the court made said minute on his docket showing a finding by the court that the divorce should be granted, the court also made an “oral pronouncement of judgment in said divorce action.”

The complaint prayed also “that the alleged judgment of divorce be declared valid and legal. ***”

That suit was tried by the court, by a special judge, and, a special finding of facts and conclusions of law having been requested, the court made its finding of facts and stated its conclusions of law on January 20, 1933. Plaintiffs filed a motion for new trial. This motion was overruled, and judgment was rendered for defendant Cooper on May 17, 1933.

On April 27, 1933, about three months after the court filed its special finding of facts in said cause, appellants filed in the divorce cause “an application and motion *** for an order vacating entry of dismissal and for judgment nunc pro tunc on finding” made by the court in said divorce cause on July...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT