Fellenzer v. VanValzah

• Decision Date: 18 April 1884
• Docket Number: 11,241
• Citation: 95 Ind. 128
• Parties: Fellenzer et al. v. VanValzah
• Court: Indiana Supreme Court

95 Ind. 128

Fellenzer et al. v. VanValzah

No. 11,241

Supreme Court of Indiana

April 18, 1884

From the Vigo Circuit Court.

The judgment is affirmed with costs.

M. M Joab and A. M. Black, for appellants.

T. W Harper, W. E. Hendricks, W. Mack and I. N. Pierce, for appellee.

OPINION

Howk C. J.

The record of this cause shows that on the 30th day of March 1882, the appellee, Martha VanValzah, the plaintiff below, filed what is called her substituted complaint against the appellants, Jacob Smock, Alexander Smock, Martha W. Fellenzer, Joseph F. Fellenzer, George W. Fellenzer, Catharine Fellenzer and William H. Fisk, as defendants. Following the copy of this "substituted complaint," as it appears in the transcript, is a foot-note by the clerk to the effect that such substituted complaint, "it seems, is the only complaint on file in this action; the plaintiff seems to have amended it, after it was filed, by interlineations," and it "is the second amended complaint in this cause filed."

In such complaint, the appellee alleged that, on April 10th, 1877, the appellants Jacob and Alexander Smock were the owners of the south forty feet of lot No. 119, in the city, then town, of Terre Haute, in Vigo county; that on the day last named, Jacob Smock and his wife, then living but since dead, and Alexander Smock executed a mortgage to Nimrod C. Sparks and Penelope, his wife, on said real estate, to secure the mortgagees, as follows: "That, whereas the mortgagees have this day assumed and agreed to pay a school fund mortgage of $ 1,000, executed by Jacob Smock and Alexander Smock on certain lands this day deeded to mortgagees; now, whenever the said mortgagees pay the said mortgage, then the mortgagors agree to pay the mortgagees $ 622;" that such mortgage was duly recorded in the recorder's office of Vigo county, on May 18th, 1877, and within forty-five days after its execution; that said Nimrod C. Sparks died intestate, on the day of -----, 187-, leaving his wife, Penelope, surviving him; that, upon the death of said Nimrod, all the right, title and interest in said mortgage became vested in said Penelope by law of survivorship; that said Penelope died intestate, on the day of -----, 187-, leaving the appellee and Margaret C. VanValzah her only heirs at law; that said Penelope left no debts, judgments or other claims, unpaid or due against her estate, and no administrator thereof had been appointed.

And the appellee averred that Penelope Sparks, long before her death, gave the claim in suit to the appellee; that at the time of such gift, suit was pending in the court below, and the said Penelope directed Messrs. Mack and Harper, her attorneys, to pay the proceeds when collected to appellee, as she, Penelope, had given her such claim; that, on December 21st, 1881, the said Margaret C. VanValzah assigned in writing to the appellee all her right, title and interest in said mortgage, and that the appellee was then the sole owner of said mortgage.

And the appellee further averred, that on the 3d day of September, 1877, the said Jacob Smock and Caroline, his wife, and Alexander Smock conveyed said mortgaged premises to one Joseph F. Fellenzer; that, on March 22d, 1879, said Joseph F. Fellenzer died intestate, leaving as his sole heirs at law Martha W. Fellenzer, his widow, and Joseph F. Fellenzer, George W. Fellenzer and Catharine, his wife, and John Fellenzer, his children; that, on the day of -----, 18--, John Fellenzer died unmarried and without issue, leaving his said mother and brothers as his only heirs; that when said Joseph F. Fellenzer, Sr., purchased the said mortgaged premises, he had full notice of the mortgage in suit; that the said Penelope Sparks, on April 12th, 1881, fully paid and discharged the school fund mortgage, described in the mortgage sued upon; and that the said Penelope Sparks, in her lifetime, on April 12th, 1881, demanded of the appellants payment of the said sum of $ 622, but such payment was refused; and that the said sum of $ 622 was then due and remained wholly unpaid. The appellant William H. Fisk was in possession of the mortgaged premises, as tenant, but his rights were junior to appellee's claim. Wherefore, etc.

The cause was put at issue and tried by the court, and a finding was made for the appellee, the plaintiff below, in the sum of $ 680, and a judgment and decree were rendered for the foreclosure of the mortgage in suit, and the sale of the mortgaged premises.

The defendants Jacob Smock, Alexander Smock and William H. Fisk, upon notice of this appeal by their co-defendants, decline to join therein. The appeal is prosecuted by, and in the names of, Martha W. Fellenzer, George W. Fellenzer, Catharine Fellenzer and Joseph F. Fellenzer, as the only appellants, and they have here assigned errors, as follows:

"1. The second amended complaint does not state facts sufficient to constitute a cause of action.

"2. The court erred in overruling the demurrer to the complaint.

"3. The court erred in striking out the second paragraph of the defendants', the Fellenzers', answer.

"4. The court erred in overruling the motion for a new trial."

Appellants' counsel begin their brief of this cause, as follows: "The first ground assigned as error by appellants is that the second amended complaint does not state facts sufficient to constitute a cause of action. The record recites, that the plaintiff files her second amended complaint. The only pleading on file, purporting to state her cause of action, is her substituted complaint. To this, appellants demurred, and the court sustained the demurrer, with leave to amend. The pleading having been thus disposed of, without exception, is out of the record; and the statements of the clerk will not cure the error."

If we should adopt the view thus taken by appellants' counsel of the record of this cause, and the appellee's counsel seem anxious that we should do so, what then would follow? Simply, and of necessity, the affirmance of the judgment. In this court, every presumption is indulged in favor of the decisions of the trial court, and the burden is upon the appellant to overcome such presumptions. It is not enough merely to allege or assign error, but, in every case, the appellant must clearly show the particular error upon which he relies for the reversal of the judgment. If he should claim as error, as in this case, that the complaint does not state facts sufficient to constitute a cause of action, or that his demurrer to the complaint was erroneously overruled, it will avail him naught to assert,...