Fuehring v. Union Trust Co. of Indianapolis

• Decision Date: 28 October 1946
• Docket Number: 17493.
• Citation: 69 N.E.2d 141,117 Ind.App. 246
• Parties: FUEHRING et al. v. UNION TRUST CO. OF INDIANAPOLIS et al.
• Court: Indiana Appellate Court

69 N.E.2d 141

117 Ind.App. 246

FUEHRING et al. v. UNION TRUST CO. OF INDIANAPOLIS et al.

No. 17493.

Appellate Court of Indiana, in Banc.

October 28, 1946

Appeal from Probate Court, Marion County; Dan V. White Judge.

Action by William Fuehring and another against the Union Trust Company of Indianapolis, trustee under the will of William H Fuehring, deceased, and others, to review a judgment rendered against plaintiffs during their minority in the probate court construing the last will and testament of William Fuehring. From an adverse judgment, plaintiffs appeal.

Affirmed.

Barney & Hughes, of Indianapolis, for appellants.

Davis Baltzell, Hartsock & Dongus, and Paul G. Davis, all of Indianapolis (Paul Y. Davis and Harvey B. Hartsock, both of Indianapolis, of counsel), for appellees other than Carl W Fuehring.

HAMILTON Chief Judge.

This is an appeal by appellants from an adverse judgment of the Marion Probate Court, Marion County, Indiana, in an action instituted by them to review for error of law of a judgment rendered against appellants on December 15, 1937, during their minority, in cause No. 3197 in said Marion Probate Court, construing the last will and testament of William Fuehring, appellants' grandfather.

The issues were joined on appellants' complaint in a single paragraph and appellees' answer thereto admitting and denying certain rhetorical paragraphs of the complaint, as required by Rule 1-3, Revised Rules of the Supreme Court.

The trial was to the court, without a jury, resulting in a judgment that plaintiffs take nothing by their complaint and that the defendants recover their costs.

Appellants filed a motion for a new trial and, from the action of the court in overruling said motion for a new trial, appellants prosecute this appeal.

The sole error assigned is the overruling of appellants' motion for a new trial. The reasons assigned in the motion for new trial are: (1) That the decision of the court is not sustained by sufficient evidence; and (2) that the decision of the court is contrary to law. Specifications 3, 4, 5, and 6 of the motion relate to alleged error in refusing to admit certain evidence consisting of one exhibit and answers to certain questions propounded to the witness, William Fuehring.

An examination of the record discloses that the motion for a new trial fails to set forth the objection made to the offered evidence and exhibit, the offer to prove, if any, and the court's ruling in sustaining appellees' objection to the questions and the exhibit.

For said reasons it is well settled that no question is presented for our consideration by specifications 3, 4, 5, and 6 of the motion for new trial. Golden Guernsey Farms v. State Ind.Sup.1945, 63 N.E.2d 699, 702; McKee v. Mutual Life Ins. Co. of New York, 1945, 222 Ind. 10, 51 N.E.2d 474; Johnnie J. Jones Exposition, Inc., v. Terry, Ind.App.1945, 63 N.E.2d 159, 162; Wise v. Curdes, 1942, 219 Ind. 606, 40 N.E.2d 122.

This being a negative decision in an action wherein the appellants carried the burden of proof, the first specification in the motion for new trial assigning the insufficiency of the evidence to sustain the decision of the court is inappropriate and presents no question to us. McKee v. Mutual Life Ins. Co. of New York, supra; Wilson, Admx., v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905; Smith v. Strock, 1945, 115 Ind.App. 518, 60 N.E.2d 157, 158, and cases cited.

As heretofore stated, this was an action to review the judgment rendered against appellants in cause No. 3197 in the Marion Probate Court for errors of law which are averred in the complaint in the following language, to wit:

'That the errors of law appearing in said proceedings, decree and judgment are as follows:

'a. That the complaint so filed in said cause of action did not state facts sufficient to constitute a cause of action against these plaintiffs.

'b. That the decision, judgment and decree of the court therein was contrary to law.

'c. That the court erred in finding for the plaintiffs in said cause of action.

'd. That the court erred in finding that Item Four of the last will and testament of William H. Fuehring is vague, indefinite and uncertain, and in rendering judgment on said finding.

'e. That the court erred in finding that Item Four on the last will and testament of William H. Fuehring is in violation of the statutes of the State of Indiana, and in rendering judgment on said finding.

'f. That the court erred in finding that Item Four of the last will and testament of William H. Fuehring is null, void, and of no force and effect, and in rendering judgment on said finding.

'g. That the court erred in finding that no effective trusts were created by Item Four of the last will and testament of William H. Fuehring, and in rendering judgment on said finding.'

It will be observed that fraud and misconduct upon the part of the guardian ad litem are not alleged in the complaint to review for error of law; neither is it alleged that the decree and judgment of which complaint is made was rendered by the consent of the parties, including the guardian ad litem.

Appellants concede that the complaint filed in cause No. 3197, aforesaid, in the Marion Probate Court was sufficient to withstand a demurrer if one had been filed and that since the amendment of § 2-1007, Burns' 1933, in 1911, the question of the insufficiency of the complaint is not available as an assignment of error on appeal, unless the same was attacked by demurrer specifically pointing out the particular defect, and likewise, such insufficiency cannot be a ground for setting aside a judgment by a complaint to review for errors of law. Second Nat. Bank of Robinson, Ill., v. Scudder, 1937, 212 Ind. 283, 6 N.E.2d 955; Calumet Teaming & Trucking Co. v. Young, 1941, 218 Ind. 468, 471, 33 N.E.2d 109, 583; Searle v. Whipperman et al., 1881, 79 Ind. 424, 427; Hardy et al. v. Miller et al., 1883, 89 Ind. 440.

Referring to sub-rhetorical paragraphs 'a,' 'b,' and 'c' of rhetorical paragraph 16 of appellants' complaint to review the former judgment for errors of law, we find that said specifications are statutory grounds for a new trial. § 2-2401, Clause Sixth, Burns' 1933. Likewise, sub-rhetorical paragraphs 'd,' 'e,' and 'f' of rhetorical paragraph 16 of appellants' complaint, wherein it is alleged that the court erred in its construction of Item Four of the last will and testament of William H. Fuehring, present a question which could properly be presented only by a motion for a new trial filed in said cause No. 3197, assigning as a ground therefor that the finding and decision of the court in said cause was contrary to law. Partner v. Citizens' Loan, etc., Co., 1904, 163 Ind. 303, 305, 71 N.E. 894.

It is conceded by appellants that no motion for a new trial was filed in cause No. 3197, aforesaid, although the appellants, as infant defendants therein, were represented by a duly appointed guardian ad litem who appeared and filed an answer in general denial, as required by statute in behalf of said minor defendants.

Appellants state the decisive question presented by this appeal as follows: 'Where a guardian ad litem appointed for infant defendants fails to file a motion for a new trial, does a basis exist for a review of such a judgment by said infants by a complaint for errors of law?' Appellants assert that this precise question has not been decided in this state and that there are no rulings precedent thereon. We are unable to agree with this statement.

We believe that the law applicable to the facts presented by the record before us is well stated by the Supreme Court in the case of Graves et al. v. State ex rel. Cole, Auditor of Harrison County, 1893, 136 Ind. 406, on pages 410 and 411, 36 N.E. 275, on page 276 as follows:

'A proceeding to review a judgment is in the nature of an appeal, and the complaint, where the proceeding is for error of law apparent on the face of the record, as in the case at bar must set out so much of the record in the original cause as would be necessary to present the same question on appeal to this court. 1 Work, Pr., p. 691, sections 1049-1051, and authorities there cited.

'A party is required to file a motion for a new trial, before he can present a question an appeal to the supreme court and the same rule applies in like manner before error can be assigned in a complaint to review a judgment. Generally speaking, the trial of a cause is not ended until a motion for a new trial is disposed of or waived. [1 Works' Prac.,] p. 602, section 927, and authorities cited.

'Stating the case differently, a party must ask relief...