Fairbanks v. Warrum

• Decision Date: 24 April 1914
• Docket Number: No. 8234.,8234.
• Citation: 56 Ind.App. 337,104 N.E. 983
• Parties: FAIRBANKS et al. v. WARRUM et al.
• Court: Indiana Appellate Court

56 Ind.App. 337

104 N.E. 983

FAIRBANKS et al.

v.WARRUM et al.^d1

No. 8234.

Appellate Court of Indiana, Division No 2.

April 24, 1914.

Appeal from Circuit Court, Rush County; Alonzo J. Blair, Judge.

Action by Richard H. Warrum and others against Crawford Fairbanks and another. From a judgment for plaintiffs, defendants appeal. Affirmed conditionally.Joseph E. Bell and John J. Kelly, both of Indianapolis, and Smith, Cambern & Smith, of Rushville, for appellants. Tindall & Tindall, of Shelbyville, for appellees.

CALDWELL, J.

In 1889 Noble Warrum was the owner of two tracts of land in Hancock county, containing 15 acres and 353 acres, respectively. On the 7th day of August of said year said Warrum executed to appellant Fairbanks a gas and oil lease, covering said first tract, and on July 10th of the same year he executed to said appellant a like lease covering said second tract. On the 28th day of October, 1893, said Warrum, by deed of general warranty, conveyed said first tract and 58 acres off of the west side of said second tract to the appellees, as husband and wife, for and during the period of their natural lives, and the natural life of the survivor of them, with remainder in fee to their children. Said deed was duly recorded on the 19th day of January, 1894. At some time subsequent to the execution of said leases Fairbanks assigned them to his coappellant the Southern Indiana Gas Company. Said leases in their substantial provisions are identical. Each granted to said Fairbanks and his assigns the exclusive right to operate on said lands therein described for the production of water, oil, and natural gas, and to tank and transport petroleum oil, and also the exclusive right to lay pipe lines on said lands and along the adjacent highways. There is a further provision as follows: “Said Fairbanks agrees that he or his assigns will furnish free of charge during the continuance of this contract natural gas for lighting and heating one residence on said place, for the cooking of food for the owner's stock, to be delivered at the nearest practicable point on his main in use or at his wells, as long as gas is there obtained in paying quantities for piping, according to the judgment of said Fairbanks or assigns, and to pay at the rate of one hundred dollars per year on each well completed. It is further agreed that, until said Fairbanks or assigns shall complete a well on the described premises, he or his assigns will pay to the first party yearly in advance on demand, at the Citizens' Bank in the city of Greenfield, Indiana, a rental of fifty cents per acre on said premises, and a failure to pay said rental shall render this contract null and void.” It is provided that the lessor shall have one-eighth of the oil produced at the well. It is further provided: “This contract to be in force for the term of twenty years, and the said Fairbanks or assigns shall have the right at the expiration of said time at his option to continue the same for three additional terms on the same conditions, said option to be exercised by said Fairbanks or assigns at the end of each term.”

The complaint is in two paragraphs. Among other matters, it is alleged in the first paragraph in substance that said Fairbanks entered into the possession of the leased premises under said 15-acre lease, but that neither he nor his assigns drilled a well on said premises; that Fairbanks paid to Noble Warrum the acreage rentals under said lease until the year 1893; that he assigned said lease to his coappellant on the - day of -; that the acreage rentals that accrued under said lease after the execution of said deed to appellees on the 28th day of October, 1893, were not paid; that said lease expired by limitation at the end of said 20-year term on the 7th day of August, 1909. By this paragraph appellees, as owners of said life estate in said 15-acre tract, seek to recover 15 annual installments of acreage rentals of $7.50 each, commencing with the installment alleged to have been payable August 7, 1894.

The second paragraph alleges in substance that Fairbanks, having entered into possession of said 353-acre tract under said lease, which lease was duly recorded August 17, 1889, drilled and completed a gas well thereon on the - day of -, 1890, which well produced large quantities of gas, and that he used and transported gas from said well in paying quantities until the - day of -, 1899, and that he paid to said Noble Warrum the specified well rental on said well up to the said time of the execution of said deed to appellees on the 28th day of October, 1893; that on the - day of - Fairbanks assigned said lease and all his rights, title, and interest under it to his coappellant; that said lease expired by limitation on July 10, 1909, being at the end of said 20-year term. It is not alleged that said well was on that part of said tract so conveyed to appellees. Other facts are alleged from which it appears that appellees, as such life tenants, claim that they are entitled to recover such a proportionate part of said well rentals accruing after the execution of said deed as said 58-acre tract bears to said 353-acre tract. It is alleged that, commencing with the installment accruing July 10, 1894, there were 15 of such installments payable within the subsequent life of said lease, of which it is alleged that appellees' said proportionate share is $300, for which judgment is asked.

Appellants jointly answered in 12 paragraphs. Appellees' demurrer was sustained to each paragraph of answer, except the first, which was a general denial, and the ninth and tenth, which pleaded payment. Appellees replied a general denial to said ninth and tenth paragraphs of answer. Trial by jury, resulting in verdict and judgment in favor of appellees for $34C. The errors assigned and not waived relate to the sustaining of said demurrer to said paragraph of answer, and to the overruling of the motion for a new trial. Included in the motion for a new trial, as grounds thereof, are certain assignments relating to the giving and refusing of instructions, and to the exclusion of certain offered evidence. It is assigned, also, that the amount of recovery is erroneous, being too large, and that the verdict is not sustained by sufficient evidence, and that it is contrary to law. Such being the nature of the motion for a new trial, it becomes necessary for us to consider certain preliminary questions urged upon our attention, and first as to whether or not the evidence is in the record.

[1][2] To bring the evidence into the record, it is necessary that the bill of exceptions containing it be properly filed after it has been signed by the judge. The fact of such filing must be made to appear otherwise than by statements contained in the bill. Miller v. Evansville, etc., Co., 143 Ind. 570, 41 N. E. 801, 42 N. E. 806;Hoffman v. Isler, 49 Ind. App. 284, 97 N. E. 188. That the bill was filed in the cause, and the date of filing, must be shown either by an entry of record or by the certificate of the clerk. Here the transcript does not show such an entry. The clerk, by his certificate, shows the filing of the longhand manuscript of the evidence by the reporter; but it contains no reference to the filing of the bill after such manuscript was incorporated into it. Under such circumstances, the evidence is not in the record. The clerk's certificate is practically identical with the certificate set out in the first case cited below. Hoffman v. Isler, supra; Daugherty v. Reveal, 102 N. E. 383;Howe v. White, 162 Ind. 74, 69 N. E. 684; Miller v. Evansville, etc., Co., supra. Questions relating to the exclusion of offered testimony are therefore not presented. Taylor v. Schradsky, 178 Ind. 217, 97 N. E. 790.

[3] The court, at the request of appellees, gave 8 instructions, to the giving of which appellants excepted in the following language: “To the giving of which the defendants and each of them at the time object and except.” Such exception is in gross, or to such instructions as a whole. Appellants tendered to the court all instructions, with the request that they be given as a part of the court's charge. The court gave the third and fourth and refused the others. Appellants' exception to such refusal is as follows: “And the court now refuses to give defendants' instructions numbered 1, 2, 5, 6, 7, 8, 9, 10, 11, to the refusing to give which the defendants and each of them at the time object and except.” Such exception also is in gross, rather than to the refusal to give each instruction refused. Under such circumstances, available error cannot be predicated on the giving of said instructions, unless all so given and excepted to were erroneous, or on the refusal of such instructions so requested by appellants, if any one of them was correctly refused. Steele v. Michigan Buggy Co., 50 Ind. App. 635, 95 N. E. 435;State v. Ray, 146 Ind. 500, 45 N. E. 693;Ohio, etc., Co. v. McCartney, 121 Ind. 385, 23 N. E. 258;Rastetter v. Reynolds, 160 Ind. 133, 66 N. E. 612;Kluse v. Sparks, 10 Ind. App. 444, 453, 36 N. E. 914, 37 N. E. 1047; Taylor v. Schradsky, supra; Musgrave v. State, 133 Ind. 297-313, 32 N. E. 885;Jones v. State, 160 Ind. 537, 67 N. E. 264.

[4][5][6] As the evidence is not in the record, the judgment cannot be reversed on account of said instructions given, if they would have been correct under any supposable state of facts within the issues. Baltimore, etc., Co. v. Rowan, 104 Ind. 88, 3 N. E. 627. Moreover, by reason of the nature of the exception to instructions given, as above outlined, the same conclusion follows, if any one of said instructions is presumably correct under the principle last above announced. It is not seriously contended that all said instructions so given and excepted to are erroneous. In fact, one of said instructions, being the one to which the court assigned the number 11, is not even included among those of which complaint is made, as set out in appe...