Gladieux v. Johns

• Decision Date: 07 June 1916
• Docket Number: No. 9505.,9505.
• Citation: 113 N.E. 320,62 Ind.App. 338
• Parties: GLADIEUX v. JOHNS et al.
• Court: Indiana Appellate Court

62 Ind.App. 338

113 N.E. 320

GLADIEUX

v.JOHNS et al.

No. 9505.

Appellate Court of Indiana, Division No. 1.

June 7, 1916.

Appeal from Superior Court, Allen County; Carl Yaple, Judge.

Partition suit by Louis S. Gladieux against Irma Johns and others, in which certain defendants file cross-complaints. From a judgment determining the rights of the various parties in the property, the plaintiff appeals. Appeal dismissed.

William C. Ryan, of Ft. Wayne, for appellant. Leonard, Rose & Zollars, of Ft. Wayne, for appellees.

McNUTT, J.

This was an action brought by appellant against appellees, Johns and Johns, for the partition of real estate. He filed an amended complaint, to which he made other parties defendants, including the New Haven Supply Company, alleging that they each, except Joseph J. Johns, had or claimed some lien on the real estate, and asked that his title be quieted as to all defendants, and for partition and the establishment of the priorities of the liens. Some of the defendants filed disclaimers, and all the others except Joseph J. Johns, husband of Irma Johns, filed answers and cross-complaints, including defendant New Haven Supply Company. The cross-complaint of Irma Johns was against appellant and her codefendants, and by it she asked to recover certain rents from appellant, who was her cotenant, and to quiet title against all codefendants, including the New Haven Supply Company. Appellee Girardot filed a cross-complaint against appellant and Irma Johns and her husband, setting up a written lease on the real estate, executed by appellant, and acquiesced in by Mrs. Johns. The New Haven Supply Company filed a cross-complaint against appellant and all its codefendants, setting up a mechanic's lien against said real estate, and asking for its foreclosure. Subsequently, on motion of Mrs. Johns, the New Haven State Bank was made a defendant, and it filed a cross-complaint against appellant and its codefendants, setting up a mortgage on the real estate, and asking that said mortgage be declared a lien and paid out of the proceeds of sale. The issues were closed by a general denial to all the cross-complaints; cause submitted to the court, and the court found that appellant and Mrs. Johns were the owners of the real estate described in the amended complaint, as tenants in common; that the said bank held a mortgage, which was a first lien after payment of costs; that the New Haven Supply Company held a mechanic's lien which was next to be paid; that appellant paid some liens on the real estate; and that his cotenant, Mrs. Johns, owed him a certain sum, which was next to be paid out of her part; that appellant had kept possession of the real estate adverse to his cotenant, Mrs. Johns, and that he owed her a certain sum for rents, which was a lien on appellant's part of the real estate; that appellant had given a written lease to cross-complainant Girardot, which was void “as between the parties to this proceeding”; that certain attorneys be paid out of the funds; that the property be sold by commissioners. The judgment of the court followed the above findings, to which appellant and said Girardot separately excepted, and each filed separate motions for a new trial, which were overruled, and exceptions reserved.

Appellant has undertaken to perfect a term time appeal, and assigns error: (1) That the court erred in making new parties over objection of appellant after submission of the cause, and after a portion of the evidence was heard; (2) that the court erred in overruling appellant's motion for a new trial. Appellant's motion for a new trial is for the following causes:

“First. That the court erred in permitting new parties defendant made parties to this action after cause was submitted for trial, and a portion of the evidence heard. Said action of the court in making new parties being over the objection of the plaintiff, and to the ruling of the court permitting such parties to be made defendants at said time the plaintiff then and there excepted. Second. That the decision of the court is contrary...