Fleetwood v. Denny, 668A106

• Decision Date: 14 October 1969
• Docket Number: No. 668A106,No. 1,668A106,1
• Citation: 145 Ind.App. 404,251 N.E.2d 454
• Parties: W. Claude FLEETWOOD, Nellie M. Fleetwood, Helen F. Westlund, Appellants, v. Straussie DENNY, Ruth Wheeler, Lesta Thickston, Verl Lyon, Gene Fleetwood, Mary Margaret Layton, and Bertha Bright, Appellees
• Court: Indiana Appellate Court

Page 454

251 N.E.2d 454

145 Ind.App. 404

W. Claude FLEETWOOD, Nellie M. Fleetwood, Helen F. Westlund Appellants, v. Straussie DENNY, Ruth Wheeler, Lesta Thickston, Verl Lyon Gene Fleetwood, Mary Margaret Layton, and Bertha Bright, Appellees.

No. 668A106.

Appellate Court of Indiana, Division No. 1.

Oct. 14, 1969.

Arthur H. Northrup, Indianapolis, and Allan H. Nierman, Brownstown, for appellants.

Bruce Markel, Jr., Brownstown, and Arch N. Bobbitt, Indianapolis, for appellees.

CARSON, Judge.

This is an appeal from a judgment of the Jackson Circuit Court in a cause tried by the court without jury. The appellants filed an action against the appellees for partition of a family farm in Jackson County, Indiana. The appellees filed a counterclaim to quiet the title to said real estate in themselves and in the appellant, Helen F. Westlund.

The appellants' amended complaint alleged in substance that the appellants W. Claude Fleetwood (also known as William C. Fleetwood and W. C. Fleetwood) and his wife Nellie M. Fleetwood owned half of said farm and Mr. Fleetwood's sisters, Mrs. Westlund (an appellant) and the appellees Mesdames Denny, Wheeler, Thickston, Lyon and Layton each owned one-twelfth (1/12) of the farm (subject to a life estate of one-third (1/3) of Mrs. Layton's share in the name of Gene (Jean Fleetwood). The amended complaint further alleges that Bertha Bright is claiming some interest in said real estate. The amended complaint further alleges that the real estate is indivisible and should be sold.

The first paragraph of appellees' answer is an admission and denial pursuant to Rule 1--3, Rules of the Supreme Court of Indiana. Said paragraph admits the alleged one-twelfth (1/12) interests set out in the complaint and admits that Bertha Bright claims some interest in the real estate. The remaining rhetorical paragraphs of complaint being denied.

The appellees' counter-claim to quiet title alleged in substance that the appellees and the appellant Helen F. Westlund own said farm and asks that the title of said appellees and appellant Westlund be quieted against the claims of W. Claude Fleetwood and Nellie M. Fleetwood. After filing a motion to strike Paragraph II of appellees' answer on the ground that it violated Rule 1--3 of the Supreme Court of Indiana, which was overruled, the appellants denied Paragraph II of appellees' answer. Appellants filed an answer to the appellees' counter-claim which denied all of the statements in said counter- claim except the statement that the appellant Nellie M. Fleetwood claims an interest in the land adverse to the claim and title of any other party, which statement was admitted.

The appellees filed a motion for an abstract of title which motion was granted and the abstract filed in the cause. The court entered its findings and rendered judgment in favor of appellee.

The appellants timely filed motion for a new trial together with affidavits, to which appellees filed a memorandum opposing the motion for a new trial with counter-affidavits. An examination of the appellants' brief fails to show a copy of the motion for a new trial and also fails to show a copy of the assignment of errors although the argument portion of the brief purports to relate to both of these.

We have examined the motion for a new trial as disclosed by the record, and have considered the argument of the appellants based upon the motion for a new trial. The appellant discusses several propositions in the argument portion of his brief which were not raised in the motion for a new trial and are therefore not before us. The first specification that 'the decision of the Court is not sustained by sufficient evidence', must be considered in light of the test in Heckman v. Heckman (1956), 235 Ind. 472, 134 N.E.2d 695. We conclude that the evidence is in conflict and that there is sufficient evidence of probative value to support the...