Gilot v. Walsh

• Decision Date: 13 May 1968
• Docket Number: No. 20610,No. 1,20610,1
• Citation: Gilot v. Walsh, 236 N.E.2d 607, 142 Ind.App. 628 (Ind. App. 1968)
• Parties: Johannes GILOT, Appellant, v. Thomas E. WALSH, Appellee
• Court: Indiana Appellate Court

Page 607

236 N.E.2d 607

142 Ind.App. 628

Johannes GILOT, Appellant, v. Thomas E. WALSH, Appellee.

No. 20610.

Appellate Court of Indiana, Division No. 1.

May 13, 1968.

Miller, Tolbert & Hirschauer, Logansport, for appellant.

Reed & St. Martin, Knox, for appellee.

CARSON, Chief Justice.

This is an appeal from an action brought by the appellant in the Fulton Circuit Court on a complaint for an accounting and to establish an equitable lien. The complaint was based on a purported lease agreement in which appellant claims the appellee agreed to sell the appellant certain machinery located on leased premises and give appellant an undivided one-half (1/2) interest in livestock existing on the premises as of the First of July, 1961, and thereafter allow to the appellant one-half (1/2) of the income from the farm operation with a one-half (1/2) interest in the increase in the livestock herd. The complaint further alleges that the appellant worked on the farm until February of 1965, after receiving a notice to quit the premises given to him in November, 1964. The appellant's interest in the income of the farm was to be paid to the Peru Production Credit Association to pay off a mortgage.

A stipulation was entered into, showing the income and credits for the years 1962 through February of 1965, and a further stipulation of the amounts paid to the Peru Production Credit Association. The appellant contended that the amount paid in was less than it should have been and that there was money due and owing the appellant from the appellee. The issues were formed on the appellant's complaint, the appellee's denial under Rule 1--3 of the Rules of the Supreme Court of Indiana and cross-complaint. To the appellee's cross-complaint, the appellant filed answer under Rules 1--3 of the Rules of the Supreme Court of Indiana. At the close of the appellant's evidence, the appellant tendered a second paragraph of complaint on the theory of unjust enrichment and a third paragraph on the theory of money had and received. The court refused to accept for filing the second and third paragraphs of complaint.

Trial was had to the court without a jury and the finding of the court was as follows:

'This cause having been submitted to the Court for trial and the Court having heard the evidence and arguments of counsel, and being sufficiently advised in the premises, does now find for the defendant and against the plaintiff on plaintiff's complaint herein, and that the plaintiff take nothing by this action.

'The Court further finds for the plaintiff and against the defendant on defendant's cross-complaint herein, and that the defendant take nothing in this action.

'IT IS THEREFORE, ORDERED, CONSIDERED AND ADJUDGED AND DECREED BY THE COURT that the plaintiff take nothing by this action.

'IT IS FURTHER ORDERED, CONSIDERED, ADJUDGED AND DECREED by the Court that the defendant take nothing by this action.'

The appellant's motion for a new trial contained two (2) specifications; one, that the decision of the court was contrary to law, and second, that the court erred in overruling appellant's motion to file during the course of the trial a second and third paragraph of complaint alleging unjust enrichment in one and the theory of money had and received. The single assignment of errors is that the court erred in overruling the appellant's motion for a new trial.

We feel it necessary to first point out that this action was one in equity rather than an action at law and that therefore certain rules apply with reference to discretion of the court and scope of the pleadings that would not apply if it were an action at law.

As early as 1883, our Supreme Court, in the case of Carmichael v. Adams et al., in volume 91, at page 526, quoting from 1 Pom.Eq., section 231, on equity said:

'Where a court of equity has obtained jurisdiction over some portion or feature of a controversy, it may, and will in general, proceed to decide the whole issues, and to award complete relief, although the rights of the parties are strictly legal, and the final remedy granted is of the kind which might be conferred by a court of law.'

Most recently, in the case of Watson v. Watson (1952), 231 Ind. 385, at page 394, 108 N.E.2d 893, at page 898, our Supreme Court said:

'This being a suit in equity 'the whole case is drawn into equity, and any item connected with the accounting of the partnership business may properly be...