Hoffman v. Henderson
| Decision Date | 24 September 1896 |
| Docket Number | 17,700 |
| Citation | 44 N.E. 629,145 Ind. 613 |
| Parties | Hoffman et al. v. Henderson |
| Court | Indiana Supreme Court |
From the Fulton Circuit Court.
Affirmed.
Enoch Myers, for appellants.
Conner Rowley & McMahan, for appellee.
Appellee on March 27, 1894, instituted this action against appellants Vernet S. and Phillip P. Hoffman, upon a promissory note, executed by them to her on March 20, 1893, for the sum of $ 100.00, which note was due at the commencement of the action. She also sought by her complaint to set aside an alleged fraudulent conveyance of real estate, made by Phillip P. to his wife, the appellant, Mary A. Hoffman, on October 18, 1893. The complaint also recites that said Vernet S. and Phillip P. Hoffman, on said 20th day of March, 1893, executed to the appellee three other notes, aggregating $ 600.00, none of the latter being due at the commencement of this action. The notes in question, each by their terms provide, that the interest, which is six per cent. from date, shall be due and payable annually. After the defendants had appeared in court in response to a summons, the plaintiff (now appellee) filed an affidavit for an attachment in her said action, upon the statutory ground that the defendant, Phillip P. Hoffman, had conveyed and disposed of his property subject to execution with the fraudulent intent to cheat, hinder, and delay his creditors. Upon the filing of this affidavit, and the undertaking required by the statute, a writ of attachment was duly issued, under which certain real estate, being the same described in the complaint, was levied upon, and attached as the property of Phillip P. Hoffman. On the issues joined between the parties upon the complaint and the proceedings in attachment, a trial was had before a jury, which resulted in a finding for the plaintiff upon the note due, and a finding of the aggregate amount that would be due upon the other three notes at maturity, and also in favor of plaintiff on her attachment proceedings.
At a subsequent term, the court, over a motion by appellants for a new trial, rendered a judgment for $ 159.72 "now due;" and for further specific sums of money to become due on the three notes recited and set out in the complaint; the dates when said notes would be due were set out in the judgment. The court also in the judgment ordered the real estate attached to be sold and the proceeds arising from such sale to be first applied to the payment and satisfaction of costs and the sum then due, and next to the payment of the sums to become due in their order. Appellants in this court have assigned a series of errors. The first assails the sufficiency of the complaint. The second is based upon the action of the court in overruling a motion to strike out parts of the complaint, the third predicates error upon the overruling of a motion to separate the complaint into four paragraphs, and the fourth and fifth, respectively, aver that the court erred in overruling a motion to modify the judgment, and in overruling the motion for a new trial. We will consider these alleged errors in their order.
The complaint is in two paragraphs. The first seems to proceed upon the theory that no actual consideration was paid by the grantee for the land in controversy, and the second that she united with her husband in this attempt to defraud his creditors, and accepted the deed with the knowledge of the fraud. Under a well settled rule the complaint is sufficient when attacked for the first time by an assignment of error.
The second alleged error, counsel for appellants virtually concede is not a reversible one, for he says: "It seems to be an established rule of this court to in no case reverse a judgment upon an adverse ruling on a motion to strike out part of a pleading." We must accept his concession upon this point, and deny his contention that the rule is a "dangerous one." We cannot consider the alleged error of the court in overruling the motion to require the plaintiff to further paragraph her complaint, for the reason that the motion is not embraced in a proper bill of exceptions; neither is the exception to the ruling therein verified by such a bill. The record does not disclose that at the time the exception was taken to this ruling that time was granted to reduce the exception to writing. It is true, that at a term of the court subsequent to the one at which the ruling upon this motion was made, and at the time when the court overruled the motion for a new trial, sixty days were granted to file their bill of exceptions. This bill was filed in vacation, within the time given, and the motion to paragraph, with the decision of the court thereon, is embraced therein, as is the exception to the ruling. This procedure was not authorized by section 638, Burns' R. S. 1894 (section 626, R. S. 1881). This section provides: It is manifest, from the reading of this section, that leave given by the court upon overruling a motion for a new trial, cannot extend back and take up rulings made in the formation of the issues. By the express terms of this statute it applies to and includes only such rulings or decisions of the court made during the trial, and which are authorized to be assigned as reasons for a new trial, and which are so assigned in the motion. See Elliott App. Proced., section 813; Ryman v. Crawford, 86 Ind. 262. A bill of exceptions, for the filing of which no time has been given, cannot be filed after the term. Marshall v. Beeber, 53 Ind. 83; Whitworth v. Sour, 57 Ind. 107.
The motion to modify the judgment appears, from the record, to have been made and denied, prior to the rendition of the judgment. This was premature, and for this reason, at least, it was properly overruled. For another sufficient reason we cannot consider this alleged error. As there is no bill of exceptions showing appellants' objections to the judgment, or the exception to the court's ruling upon the motion to modify, this was necessary. Adams v. La Rose, 75 Ind. 471; The People, etc., Assn. v. Spears, 115 Ind. 297, 17 N.E. 570.
No time was granted in which to reduce to writing the exceptions taken to the ruling of the court, upon this motion, but an attempt was made, in like manner as was done in the ruling upon the motion to paragraph the complaint, to verify the same by the bill of exceptions, filed under the leave granted at the time the motion for a new trial was overruled. This procedure, for the reasons heretofore stated, was not authorized.
Appellants next insist that they should have been awarded a new trial upon the several grounds stated in their motion. They contend that the verdict of the jury is not sustained by sufficient evidence. It was agreed by the parties that the amount due at the time of the trial was $ 162.25. The main controversy applied to the execution of the alleged fraudulent deed. It appears from the evidence that Phillip P. Hoffman is the father of his co-appellant, Vernet S., and that Mary A. is the wife of Phillip P. and the mother of Vernet S. Hoffman. The notes in suit were executed by the father and son in settlement of a paternity suit which appellee had instituted against the latter. They were executed in March, 1893, and it appears that without having been secured by Phillip P Hoffman they would...
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Farm Bureau Mut. Ins. Co. of Ind. v. Seal
...See Miller et al. v. Dill et al. (1898), 149 Ind. 326, 49 N.E. 272; Parrish v. Thurston (1882), 87 Ind. 437; Hoffman et al. v. Henderson (1896), 145 Ind. 613, 44 N.E. 629. If the evidence was admissable, appellant has failed to show that it was harmed by the lower court's Appellant also urg......