Johnson v. Briscoe

• Decision Date: 11 October 1883
• Docket Number: 10,341
• Citation: 92 Ind. 367
• Parties: Johnson v. Briscoe et al
• Court: Indiana Supreme Court

92 Ind. 367

Johnson v. Briscoe et al

No. 10,341

Supreme Court of Indiana

October 11, 1883

Rehearing: January 3, 1884.

Petition for a Rehearing Overruled, Reported at: 92 Ind. 367 at 370.

From the Spencer Circuit Court.

The judgment is affirmed, at the costs of the appellant.

C. L Wedding and E. M. Swan, for appellant.

G. L Reinhard and W. H. Thomas, for appellees.

OPINION

Bicknell, C. C.

This was an action to recover possession of land and damages for detaining it.

The parties submitted the cause to the court for trial upon an amended complaint. Such a submission waives an issue, and the pleading not answered is regarded as denied. Cogswell v. State, ex rel., 65 Ind. 1; Kirkpatrick v. Alexander, 60 Ind. 95.

The court found for the plaintiffs, with $ 20 damages. The defendant's motion for a new trial was overruled, judgment was rendered on the finding, and the defendant appealed. He assigns as error the overruling of the motion for a new trial.

The reasons for a new trial are:

1. Excessive damages.

2. The finding was not sustained by the evidence.

3. The finding was contrary to law.

4. Error of law occurring at the trial, in several particulars, none of which are discussed in the appellant's brief except the following, to wit:

A. Refusing to allow the defendant to introduce in evidence the judgment of George Deege v. William Briscoe, the execution thereon and the certificate of sale thereunder.

B. Refusing to allow the defendant to introduce in evidence the judgment of Elbert L. Johnson v. William Briscoe et al., the decree issued thereon and the certificate of sale.

C. Refusing to allow the defendant to introduce in evidence the tax deed to Charles L. Wedding.

The bill of exceptions contains the following statement:

"Be it remembered that upon the trial of this cause it was conceded and admitted by the defendant that the plaintiffs, William Briscoe, Nancy M. Vanada, Mary J. Bennett, William S. Briscoe, Laura T. Briscoe, Elizabeth Harger and Sarah T. Bates, were, at the commencement of suit, the owners of all the land described in plaintiffs' complaint by deeds of conveyance or by inheritance, except and subject to the defences to be given in evidence herein by said defendant, and further that said plaintiffs are the only surviving heirs of Rebecca Briscoe, deceased, and of such of her heirs as were dead at the commencement of this suit; and it was conceded and admitted by said plaintiffs that said defendant Elbert L. Johnson held a deed from said plaintiff Elizabeth Harger and her husband, conveying her entire interest in said real estate to said defendant, but that said deed was made and executed since the commencement of this suit."

The record further states that the parties in open court admitted that "all questions of damages and rents and profits of said real estate to January 11th, 1882, were adjusted in another action between said parties."

The only testimony introduced by either party as to damages was confined to the period between said January 11th, 1882, and the day of trial, which was April 10th, 1882.

In such an action damages may be recovered up to the rendition of the judgment. Dobbins v. Baker, 80 Ind. 52. The witnesses put the rental value of the premises for the time above stated at various sums between $ 50 and $ 150; the damages allowed, $ 20, were clearly not excessive.

As to the second and third reasons for a new trial, the appellant in his brief claims that those reasons are valid, because of the admission by the appellees that Mrs. Harger and her husband had conveyed to the appellant two twenty-first parts of 160 acres of the land in controversy, but this conveyance having been made on the 9th of March, 1882, long after the commencement of the suit, it had no effect on the suit. Musselman v. Manly, 42 Ind. 462; Carr v. Ellis, 37 Ind. 465.

The finding was sustained by the evidence, and was not contrary to law. Admissions made in open court are conclusive for the purposes of the trial. Thompson v. Thompson, 9 Ind. 323; 1 Greenl. Ev., section 27.

There was no error in refusing to allow the defendant to read in evidence the judgment of George Deege v. William Briscoe, and the execution and certificate of sale thereupon. They did not show a sale of the land in controversy; they showed that on the 17th of December, 1881, the sheriff had sold to Elbert L. Johnson the rents and profits of the land, and that if there were no redemption within a year from the day of sale, he would then be entitled to the rents and profits for seven years. The trial was had before the expiration of the year of redemption.

The papers offered in evidence in reference to the judgment of Elbert L. Johnson v. William Briscoe et al., were a transcript of the judgment of a justice of the peace, the certificate of the justice that execution had been issued thereon and returned nulla bona, an affidavit of the plaintiff showing the amount due on the judgment, and an execution issued on the judgment by the clerk of the circuit court after the transcript had...