Heberd v. Wines
| Decision Date | 28 January 1886 |
| Docket Number | 12,364 |
| Citation | 4 N.E. 457,105 Ind. 237 |
| Parties | Heberd v. Wines et al |
| Court | Indiana Supreme Court |
From the Greene Circuit Court.
The judgment is affirmed, with costs.
W. A Cullop, G. W. Shaw, C. B. Kessinger, A. G. Cavins, E. H. C Cavins and W. C. Cavins, for appellant.
E. E Rose, E. Short, J. D. Alexander and H. W. Letsinger, for appellees.
Appellee Morrison brought this action against appellees Wines and Wines, and appellant, to quiet the title to certain lots in Bloomfield.
He alleged in his complaint that, in addition to other sources of title, he derived title through a sale by the auditor for delinquent taxes. Appellant filed a cross complaint against Morrison and Wines and Wines, in which he set up that, on the 22d day of October, 1873, he recovered a judgment against appellee William Wines that at the time the judgment was rendered, and until the sale for taxes, and the purchase by Morrison in 1881, said Wines was the owner of the lots in controversy, and that hence the judgment was a lien thereon. He asked that his judgment might be declared to be a lien upon the lots, prior to any legal or equitable claim by William Wines or his wife, Nancy J. Wines.
William Wines filed an answer to this cross complaint, but it is not in the record. Nancy J. Wines filed a separate answer to appellant's cross complaint, and also a cross complaint against appellant Morrison and her husband, William Wines. In her cross complaint, as well as in one paragraph of her answer, she set up that she was the real and equitable owner of the lots; that her husband purchased them for her, and paid for them with her money, which came to her from her father's estate; and that without her knowledge and consent, and by mistake, the deed for the lots was taken in the name of her husband. She asked that her title to the lots might be quieted as against the claims of the other parties to the action. The case, having been put at issue by answers and replies, was submitted to the court for trial. The court found against Nancy J. upon her cross complaint; that Morrison had no title to the lots, but was entitled to a first lien for the amount paid by him at the tax sale; that the judgment in favor of appellant was a lien upon the lots junior to that in favor of Morrison, but superior to any claim by William Wines or Nancy J. Wines, except such interest as she might have as the widow of her husband, should she survive him. Judgment was rendered accordingly.
At the next term of the court Nancy J. and her husband filed a motion for a new trial as of right under the statute. R. S. 1881, sections 1064, 1065. This motion was sustained, and a new trial granted.
At the succeeding term appellant filed a motion to set aside the order granting a new trial. This motion was overruled, and he excepted.
The contention by appellant is, that the new trial was improperly granted, for two reasons. The first is that the written application, or motion therefor, having been made at a term of the court subsequent to the rendition of the judgment, should have more definitely shown the rendition of the judgment, the time when rendered, and that the proper undertaking had been filed, although the record otherwise shows the filing thereof. In support of this contention the case of Crews v. Ross, 44 Ind. 481, is cited.
The case of Physio-Medical College v. Wilkinson, 89 Ind. 23, is a complete answer to this contention. In that case the case of Crews v. Ross, supra, was disapproved.
The second reason relied upon is that the motion for a new trial was a joint motion by William Wines and Nancy J. Wines; that William Wines was not entitled to a new trial as of right, and that, therefore, the joint motion by him and his wife was improperly sustained.
The argument that appellant applies to the ruling of the court applies with more force to his motion to set aside the order granting a new trial. It is clear that Nancy J. Wines was entitled to a new trial as a matter of right. This is conceded. Appellant's motion to set aside the order granting a new trial was not limited to so much of the order as granted a new trial to William Wines. It was directed to the whole order, which embraced also the granting of a new trial to Nancy J. Wines. As to her, the motion to set aside the order was not well taken, and was properly overruled. It was not an available error, therefore, to overrule appellant's motion for the setting aside of the whole of the order granting a new trial.
There is no available error in overruling motions and objections, where they are not well taken as a whole. Feeney v. Mazelin, 87 Ind. 226; Robertson v. Garshwiler, 81 Ind. 463; Elliott v. Russell, 92 Ind. 526; Carver v. Carver, 97 Ind. 497; Wolfe v. Pugh, 101 Ind. 293; Louisville, etc., R. W. Co. v. Falvey, 104 Ind. 409, 3 N.E. 389.
There was no error that appellant can make available, in the overruling of his motion to set aside the order granting a new trial. It would have been of but little consequence to appellant to have the order granting a new trial set aside as to William Wines, and not as to Nancy J. Wines, because, if she was the owner of the lots, his judgment was not and could not be made a lien upon them.
Upon the second trial, the court rendered a personal judgment against William Wines, in favor of appellant, for the amount of his claim, found and adjudged that Nancy J. Wines was and had been the real owner of the lots, and quieted her title thereto, subject to the claim and lien in favor of Morrison for the amount of taxes paid by him.
Appellant's motion for a new trial, and his assignment of errors in this court, alleging error in the overruling of that motion, call in question the sufficiency of the evidence to sustain the finding and judgment of the trial court.
The evidence tends to establish the following facts: William and Nancy J. Wines were married in 1856. Shortly after that Nancy J. received from her former guardian, and from her grandfather's estate, $ 875, mostly gold coin. This money passed into the hands of the husband, who purchased a farm and used the money in paying for it, telling his wife that he would settle with her. He sold this farm and bought another with the proceeds. At this time, the wife, Nancy J., insisted that something should be settled upon her, and in her name, as an equivalent of her money used by the husband. She often made the same demand. During this time and subsequently, there was an understanding that the husband should not only account to the wife for her money, but also for interest thereon. In 1869, her...
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