L'Hommedieu v. Cincinnati, W.&M. Ry. Co.

• Decision Date: 28 September 1889
• Citation: 22 N.E. 125,120 Ind. 435
• Court: Indiana Supreme Court
• Parties: L'Hommedieu et al. v. Cincinnati, W. & M. Ry. Co. et al.

120 Ind. 435

22 N.E. 125

L'Hommedieu et al.

v.Cincinnati, W. & M. Ry. Co. et al.¹

Supreme Court of Indiana.

Sept. 28, 1889.

Appeal from circuit court, Madison county; E. B. Goodykoontz, Judge.

Robinson & Lovett, for appellants. Chas. L. Henry and H. C. Ryan, for appellees.

Berkshire, J.

The appellants, who were the plaintiffs in the court below, filed their complaint in three paragraphs. The first and second were for the recovery of the possession of real property, and the third a paragraph to quiet title to the same real estate. One of the appellees filed a disclaimer, and another filed an answer in two paragraphs, and all the rest pleaded the general denial only. There was a trial by the court and a finding and judgment for the appellees. The only error assigned is the overruling of the motion for a new trial. The appellees file a third brief, which is of recent date when we compare the date at which it was filed with the dates at which other briefs were filed. In this brief the point is made that the evidence is not in the record, and therefore the questions which would otherwise be presented are not before us for consideration. This objection is purely technical, and, coming as late as it does, ought not to be regarded with very much favor; but at the same time, if we felt that the objection was well taken, we would not be at liberty to disregard it. The bill of exceptions, however, is complete and technically correct without the certificate of the person who professes to have acted as official reporter at the trial, and, there being nothing else where in the record to indicate his official character, we are not inclined to accept the certificate as a verity and set aside the bill of exceptions. This conclusion is not in conflict with the ruling in Lyon v. Davis, 111 Ind. 384, 12 N. E. Rep. 714, and other cases cited, but, if it was, it agrees with the later case of Machine Co. v. Gray, 114 Ind. 343, 16 N. E. Rep. 787, which modifies the former case.

There are several reasons assigned in the motion for a new trial. All of them, from 4 to 15, inclusive, relate to the admission of testimony over the objections of the appellants. The practice has been long and well settled in this state (the cases have been so often collected and cited that we do not feel called on to cite them in this opinion) that, to entitle an objection to offered testimony to consideration in this court, it must recite with particularity the reasons which indicate that the testimony is not competent; and that a general objection, such as the testimony is irrelevant, immaterial, and incompetent, is unavailing. As the reasons in the motion for a new trial, to which we have called attention, all depend on the one general reason, viz., the testimony is irrelevant, immaterial, and incompetent, we must disregard them. There are several important questions presented by the remaining reasons assigned, but, as our conclusions as to two of the questions will dispose of the case, and must affirm the judgment, we do not know of any good purpose to be subserved by considering and passing upon others.

It is disclosed by the record that Michael Ryan died in Butler county, Ohio, October 23, 1861, seised in fee-simple of the real estate, the title to which is in controversy in this action. He died intestate, and left as his heirs at law Mary S. Ryan, his widow, and second wife, by whom he had no children, and two children by his first wife, the appellants in this action. On the 28th day of October in the year of his death Thomas Moore and Mary S. Ryan, the widow, were by the probate court of said Butler county granted letters of administration on his estate. At the May term, 1862, of the common pleas court within and for the county of Madison and state of Indiana, that being the county wherein is situated the said real estate, the said Moore, as administrator, filed his petition and obtained an order for the sale of the said real estate for the payment of debts. After obtaining the order he laid out and platted the said real estate as “Moore's Addition to the Town of Anderson,” whether with or without the approval of the court, is not important to our conclusion. After the said real estate had been platted and laid out into lots and streets and alleys he sold the same to different persons, and reported the sales to the court. The court approved what he had done, the sales were confirmed, and deeds made and approved. The sales that were made not only included the lots proper, but also the streets and alleys; for in this state the purchaser of a town lot acquires title to the center of the streets and alleys on which it borders, burdened with the easement. The sale was made on the 27th day of June, 1862, and the purchasers on that day took possession of the said tracts or parcels purchased by them, respectively, and the sales so made were confirmed and deeds made and approved at the January term, 1863, of said court. At the time of the proceedings and sale in question section 211, p. 168, vol. 2, Gav. & H. Rev. St., was in force. Clauses 4 and 5 of this section read as follows: “ Fourth. For the recovery of real property sold by executors, administrators, guardians, or commissioners of a court, upon a judgment specially directing the sale of property sought to be recovered, brought by a party to the judgment, his heirs, or any person claiming title under a party, acquired after the date of the...