Kubisiak v. Kubisiak

• Decision Date: 13 February 1941
• Docket Number: 16431.
• Citation: 31 N.E.2d 656,108 Ind.App. 664
• Parties: KUBISIAK v. KUBISIAK et al.
• Court: Indiana Appellate Court

31 N.E.2d 656

108 Ind.App. 664

KUBISIAK v. KUBISIAK et al.

No. 16431.

Appellate Court of Indiana, in Banc.

February 13, 1941

Anthony Olczak and Edward Olczak, both of South Bend, for appellant.

Joseph V. Wypiszynski, Seebirt, Oare & Deahl, and Robert L Oare, all of South Bend, for appellees.

BRIDWELL Judge.

Appellee Leo Kubisiak, instituted this action against appellant Michael Kubisiak, and the appellees, Helen Kubisiak and Donald Jester, administrator of the estate of Stanley Kubisiak, to quiet his title to certain real estate described in his complaint and situate in the city of South Bend Indiana. Appellant filed answer to the complaint in two paragraphs, the first paragraph in general denial. The second alleged in substance that there was never delivered to the plaintiff a muniment of title to the real estate described in his complaint. In addition to these paragraphs of answer, he filed what is denominated as a "set-off", and also filed a cross-complaint against the appellee, Leo Kubisiak, asserting ownership of the same real estate described in the complaint, seeking to quiet his title thereto. Appellee, Helen Kubisiak, filed an answer disclaiming any interest in the real estate involved. Appellee, Donald Jester, administrator, filed answer in general denial to the complaint. The issues were closed by the filing of a general denial to the affirmative paragraphs of answer and to the cross-complaint. The cause was tried by jury, which returned the following verdict: "We, the jury, find for the plaintiff and find that he is the owner in fee simple of the land in controversy, and that the defendant take nothing by his suit." Judgment in accordance with the verdict was rendered. Appellant duly filed his motion for a new trial, which was overruled and this appeal followed.

Appellant's assignments of errors consists of six specifications of error, the first five of which relate to alleged errors which would have to be presented through the medium of a motion for a new trial, as all are claimed errors in connection with rulings made by the court in excluding evidence offered, in overruling a motion for a directed verdict, and in the giving or refusal to give certain instructions. The sixth error assigned is the overruling of the motion for a new trial.

The motion for a new trial asserts eleven causes therefor, the first cause being, that the verdict of the jury is not sustained by sufficient evidence, the second that said verdict is contrary to law, the third to the seventh inclusive, allege error in relation to the rulings of the court in connection with the exclusion of evidence, the eighth, ninth and tenth to the giving or refusal to give certain designated instructions and the eleventh in refusing to submit to the jury...