Jones v. Mayne

• Decision Date: 04 January 1900
• Parties: JONES v. MAYNE et al.
• Court: Indiana Supreme Court

154 Ind. 400

55 N.E. 956

JONES

v.MAYNE et al.¹

Supreme Court of Indiana.

Jan. 4, 1900.

Appeal from circuit court, Wabash county; U. Z. Wiley, Special Judge.

Suit by Laura E. Mayne and another against John D. Jones and others to set aside an order authorizing an administrator to assign a life insurance policy belonging to the estate to defendants. From a judgment in favor of plaintiffs, defendant Jones appeals. Reversed.

Spencer & Branyan and Jas. C. Branyan, for appellant. Kenner & Lesh and S. M. Sayler, for appellees.

BAKER, J.

Two of appellees, Laura Mayne and Lucy Purviance, children and heirs at law of Joseph Purviance, deceased, began this suit in the Huntington circuit court against appellant and the administrator and the widow and remaining heirs of decedent to set aside an order of the Huntington circuit court, made in the course of administration upon the estate, authorizing the administrator to assign an insurance policy upon the life of one Wilhelm, owned by the estate, to appellant in settlement of an alleged claim of appellant against the estate, and to cancel the assignment made in pursuance of such order. The widow and the other heirs confessed the complaint, and filed a cross complaint, in which they sought the same relief. After the issues were joined, the venue was changed to the Wabash circuit court. The court, on proper request, made a special finding of facts, and stated conclusions of law thereon. Judgment was rendered in favor of plaintiffs and cross complainants against appellant and the administrator. The errors assigned and not waived are: (1) That appellant's demurrer to the complaint was erroneously overruled; (2) that the cross complaint does not state facts sufficient to constitute a cause of action against appellant; (3) that the conclusions of law are incorrect; (8) that appellant's motion to modify the judgment was improperly overruled. The fourth, fifth, sixth, and seventh assignments, concerning the rulings on appellant's motions for a venire de novo, for a new trial, for a new trial upon the cross complaint, and in arrest of judgment, are waived by appellant's failure to discuss them in his brief.

As the demurrer to the complaint is not copied into the transcript, no question is presented by the first assignment. What the grounds of demurrer were, or whether any ground was properly stated, does not appear. The ruling, therefore, must be presumed to be correct. Aydelott v. Collings, 144 Ind. 602, 43 N. E. 867.

The judgment strictly follows the conclusions of law as stated. The eighth assignment, therefore, presents no question. Anglemyer v. Board (Ind. Sup.) 54 N. E. 803.

The sufficiency of the cross complaint is questioned for the first time by the second assignment. Inasmuch as the cross complaint comes here with all the curative effects of the finding and judgment, the question presented need not be considered separately, if the finding of facts does not warrant the conclusions of law.

The third assignment assails all of the conclusions of law jointly. If any one of the six conclusions is correct, appellant must fail. Saunders v. Montgomery, 143 Ind. 185, 41 N. E. 453; Ewbank, Ind. App. Proc. § 135. Appellees claim that appellant has waived this assignment by failure to discuss each conclusion of law separately in his brief. Appellant, in reference to this assignment, has stated in his brief certain propositions, supported by argument and citation of authorities, which, if true and applicable, show that on the facts found no conclusion of law could be properly stated in favor of appellees, and that the proper conclusion would have required a judgment for appellant. Under such circumstances it cannot properly be said that appellant waived the error by failure to present it to this court. Appellees urge further that appellant waived his exception to the conclusions of law, which he reserved immediatelyupon the announcement thereof, by subsequently moving the court to add to the finding certain facts which were in evidence, but presumably overlooked by the court. The court added the facts as requested. The record shows that the finding of facts and conclusions of law were filed by the court at one time. Appellant was required to except immediately. If he had allowed other proceedings in the cause to intervene, his subsequent exception would have been too late. Roeder v. Keller, 135 Ind. 692, 35 N. E. 1014. A court, after filing the finding of facts, may amend the finding, at any time before final judgment, and during the period within which a bill of exceptions containing the evidence may be filed, by supplying omissions and correcting inadvertent mistakes, so that the finding shall exhibit all of the material facts that the court believes to have been proven. And this may be done by the court of its own motion, or at the suggestion of either party. Thompson v. Insurance Co., 139 Ind. 325, 38 N. E. 796;Royse v. Bourne, 149 Ind. 187, 47 N. E. 827. There is no rule of practice recognizing the right of parties to file, as part of the proceedings in a cause, a motion to modify the special finding. Oil Co. v. Terwilliger, 152 Ind. 364, 53 N. E. 284. No matter how the court's attention is called to the omissions or misstatements, the amendment is the court's own. If a party should file such a motion, whether the court struck it from the files or let it stand, whether the court acted or refused to act upon it as a suggestion made in or out of court, no error could be predicated upon the court's action. If either party thinks the finding as finally made by the court is deficient or incorrect, his remedy is by motion for a venire de novo, or for a new trial. And, if the court does amend the finding, the amendment relates to the time of filing the finding; and, if the court lets the conclusions of law remain as filed, as he did in this case, he does so subject to the exceptions already taken thereto. The finding, in substance, is as follows: Joseph Purviance died intestate on November 29, 1885, in Huntington county, leaving an estate therein. He left surviving him the plaintiffs and cross complainants as his heirs at law. Plaintiffs were then 8 and 10 years old, respectively. In December, 1885, William Purviance was appointed administrator by the Huntington circuit court, and qualified. On April 18, 1887, appellant filed a claim against the estate for $1,525.98, and interest from July, 1873. The administrator refused to allow the claim. A trial resulted in a judgment in favor of appellant. On appeal the judgment was reversed by this court, and a new trial ordered. At the second trial, February 4, 1890, the court entered judgment for the administrator upon a special verdict. Appellant at once prayed an appeal, which was granted, and 10 days' time was given in which to file an appeal bond and bills of exceptions. Immediately after the rendition of the judgment, the attorney of the administrator presented to the court the following petition: “Huntington Circuit Court, January Term, 1890. John D. Jones v. Wm. Purviance, Adm'r. To the Honorable Judge of the Huntington Circuit Court: The undersigned administrator would respectfully represent that there exists a claim of the said John D. Jones against said estate that threatens continued litigation, and prevents the settlement of the estate and the payment of debts which are drawing interest; and the estate is the owner of a certain policy of insurance on the life of James Wilhelm, of the city of Huntington, on which annual premiums or dues are still pending, and no one of the heirs is able or willing to pay the accruing dues. Therefore your petitioner believes that said policy would be lost to said estate, and that it is to the interest of said estate that your petitioner be allowed to assign said policy to said Jones in full of said claim so pending, and upon the following terms: That said Jones pay all dues owing and accruing on said policy, and, when he realizes on said policy, pay to the widow, if living, and, if the widow should not be living, to the children, of said Joseph Purviance, the net amount of said policy, less the sum of $2,500, and less, also, the amount said Jones may have to pay to keep said policy alive. Wm. Purviance, Administrator.” The attorneys of the appellant indorsed on the petition his acceptance of the proposed settlement. The petition was not verified. It was drawn up and signed by the attorney who represented the administrator in the lawsuit. The administrator did not know the contents of the petition, and had not authorized the execution of the particular instrument, but had directed his attorney to settle with appellant upon any terms that the court would approve. Upon presentation of the petition and acceptance of the terms of the proposed settlement, the court made and entered the following order: “And now, pending said proceedings for an appeal of this cause, said administrator asks leave of the court to compromise and adjust all differences between the estate and said plaintiff, and files his petition therefor in these words: (Here insert.) And the court, being advised in the premises, sustains said petition, and hereby authorizes and directs said administrator to compromise and adjust said claim with said plaintiff, and to assign and transfer to said John D. Jones the said policy of insurance mentioned in said petition, upon the terms and conditions therein set forth, in full of all claims and demands of said John D. Jones upon or against said estate.” In pursuance of this order, the administrator indorsed the policy to appellant, who thereupon abandoned his appeal. The policy had never...