Johnson v. Zimmerman
| Decision Date | 23 April 1908 |
| Docket Number | No. 6,374.,6,374. |
| Citation | 42 Ind.App. 165,84 N.E. 541 |
| Parties | JOHNSON et al. v. ZIMMERMAN et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Elkhart County; Jas. S. Dodge, Judge.
Action by Alpheus A. Zimmerman and another against Jeanette Gortner Johnson and another. From a judgment for plaintiffs, defendants appeal. Reversed, with instructions.J. D. Osborne, for appellants. Harman & Zigler, Jas. L. Harman, and Anthony Deahl, for appellees.
Appellees were plaintiffs in the court below. Their complaint was in two paragraphs. The first in the usual form of a complaint to quiet title to certain real estate described therein; the second averred that Ruel M. Johnson was, in his lifetime, the owner of the real estate described in the complaint; that he, on the 25th day of February, 1899, executed to appellee a warranty deed for the same, his wife joining therein; that after its due execution the deed was left with said Johnson by appellee for safe-keeping; that the same had never been recorded; that afterwards Johnson died testate, and that the appellants are his executors, devisees, and legatees under his will; that upon the death of Johnson appellants came into possession of the deed, and that they refused, upon demand, to deliver the same to appellee. An answer of general denial was filed to the complaint, the cause submitted to the court for trial, and the following finding made by the court: “The court being well and sufficiently advised in the premises finds that the plaintiffs are the owners in fee simple as tenants by the entireties of the real estate described in the complaint; that the defendants claim an interest therein adverse to plaintiffs; that their claims are without right and unfounded; and that the plaintiffs are entitled to have their title thereto quieted.” This finding is followed by a judgment quieting appellees' title to the premises, and this judgment is followed by an order directing the appellants to deliver to plaintiffs, within five days, a certain deed described as having been executed by the deceased, Johnson, and wife to the appellees, and, on their failure so to do, appointing a commissioner to make a deed. Appellants' motion for a new trial for cause was overruled, and within one year from the rendition of the judgment appellants filed their bond for costs, conditioned according to law, and moved the court for a new trial as of right, which was overruled, and exceptions properly reserved. The action of the court below in overruling these motions is assigned as error in this court.
The cause relied upon for a new trial is the refusal of the court to admit in evidence an account book kept by the decedent, Johnson. It appears from the evidence that Johnson had formerly conveyed to the appellees a lot in Johnson's addition to the city of Elkhart- not the one described in the complaint; that Zimmerman and wife, through Johnson, obtained a loan of $1,500 by mortgage upon this property, and at the same time a written agreement was entered into between the appellees, the parties who made the loan to them, and Johnson, by the terms of which the $1,500 loaned was to be placed in Johnson's hands, who was to pay the same out for the construction of a dwelling house upon said lot, and it was claimed by the appellees that the real estate in controversy was paid for out of this loan. It was contended by the appellants that this was not so, but that the entire amount of said loan of $1,500 was applied by Johnson in payment for the improvement upon the lot, as contemplated by the written agreement. It was for the purpose of proving these payments that the book was offered in evidence. We think this question is not properly presented by the record before us, and unless properly presented by the record this court has no right to consider it. Martin v. Martin, 74 Ind. 207;Miller v. Evansville, etc., 143 Ind. 573, 41 N. E. 801, 42 N. E. 806;Drake v. State, 145 Ind. 210, 41 N. E. 799, 44 N. E. 188;Wilson v. State, 156 Ind. 636, 637, 59 N. E. 380, 60 N. E. 1086;Kraus v. Lehman (Ind. Sup.) 83 N. E. 715;State v. Johns (Ind. Sup.) 84 N. E. 1.
The account and the check stubs proposed to be introduced in evidence are written instruments, as much so as a note, letter, deed, record, or deposition. It is the statement in writing contained in the book and on the check stubs that is offered, and they nowhere appear in the record. Before any question can be presented to this court on the rulings made by a court below in excluding written instruments offered in evidence, the written instrument offered must be brought into the record. Roseboom v. Jefferson Sc. Tp., 122 Ind. 377, 23 N. E. 796;Rucker v. Steelman, 97 Ind. 222;Musser v. State, 157 Ind. 441, 61 N. E. 1; Nudd v. Holloway, 43 Ind. 366; Lautman v. Pepin, 26 Ind. App. 427, 59 N. E. 1073;Bensch v. Farnsworth, 9 Ind. App. 547, 34 N. E. 751, 37 N. E. 284. The preliminary proof upon which the rejected evidence was offered was made by one of the executors who had charge of the books and papers. His testimony was that the account on page 164, with Mr. Zimmerman, was in Col. Johnson's handwriting, and we might infer from this statement that the account proposed to be introduced was a statement in the book of transactions between Col. Johnson and the appellees. But such very evidently was not the case, nor is it claimed on the part of appellants that the account registered transactions between Johnson and Zimmerman, but was an account of sums paid out by Col. Johnson to disinterested third persons for work done and materials furnished in the construction of the building upon the lot referred to in the contract between the parties. These disinterested third persons to whom the payments were made were entirely competent to testify to every fact exhibited by the record made by Col. Johnson in his book. This court cannot tell from the record before us what the accounts and checks tendered in evidence would tend to prove, or whether they would tend in the remotest degree to support the contention of the appellees, and therefore the question is not before us for consideration. There was clearly no finding in this case upon any question except that presented by the first paragraph of appellants' complaint.
This was a suit to quiet title to the real estate in question and the court erred in overruling appellants' motion for a new trial as of right, and for this error the judgment of the court below is in all things reversed, with instructions to the court below to grant a new trial, with leave to the parties to reform issues, if desired.
Appellees' complaint is in two paragraphs. The first is in the usual form of a complaint to quiet title, and describes lot 122 and the east one-half of lot 121 in Johnson's Riverside addition to the city of Elkhart. In the second paragraph it is averred that appellant's decedent was in his lifetime the owner of said lands, and that the plaintiffs purchased the same from him for a consideration, which was fully paid; that he did on February 25, 1899, execute his warranty deed therefor to appellees, his wife joining therein, which deed was duly delivered to them, and that they left the same with said decedent for safe-keeping for them until such time as they should call for the same to have it recorded, and that afterwards he departed life; that they have demanded the said deed from the appellants, executors, devises, and legatee of said decedent who have possession thereof, and that they refuse to deliver it to appellees, who aver that they are entitled to the possession thereof. The issue was formed by a general denial; the cause was tried without a jury, and a judgment rendered against the appellants.
The second paragraph contains the requisites necessary to an action in replevin. Section 1266, Rev. St. 1881 (section 1286, Burns' Ann. St. 1901); Wilson et al. v. Rybolt, 17 Ind. 391, 79 Am. Dec. 486;Bush v. Groomes, 125 Ind. 14, 24 N. E. 81. The finding made by the court is “that the plaintiffs are the owners in fee simple, as tenants by the entireties, of the real estate described in the complaint; that the defendants claim an interest therein; that their claims are without right and unfounded; and that the plaintiffs are entitled to have their title quieted.” The judgment follows the finding, and contains in addition thereto an order to deliver the deed described in the second paragraph, and in default of such delivery names a commissioner to execute a deed for such premises. It is claimed that the judgment amounts to no more than one quieting title, and that a motion for a new trial as of right made by appellants should have been sustained, which question is for reasons hereafter stated not decided.
Appellees have filed a motion to dismiss the appeal basing the same upon the grounds that the provisions of the act of September 19, 1881 (Laws 1881, p. 478, c. 45, § 228), have not been followed (section 2454, Rev. St. 1881 [section 2609, Burns' Ann. St. 1901]); and that a proper index was not attached to the transcript. The appeal was, however, properly taken under the general statute (Baker v. Edwards, 150 Ind. 53, 57, 59 N. E. 174;Mason v. Roll, 130 Ind. 261, 29 N. E. 1135), and the transcript is sufficiently indexed. The motion to dismiss is therefore overruled.
The case as it comes here is upon the evidence decidedly unsatisfactory. It shows a delivery of the deed by Col. Johnson, its retention by a third person for something over a year when it was taken by Alpheus Zimmerman, and returned by him to Col. Johnson and found among the latter's effects inclosed in an envelope marked, “Not delivered.” Appellees averted and undertook to show payment of the purchase price of said lots. To this end a witness was introduced who testified in substance that the consideration for the lots described was the conveyance of another lot, which...
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