Leimgruber v. Leimgruber

• Decision Date: 02 June 1909
• Docket Number: No. 21,130.,21,130.
• Citation: 172 Ind. 370,88 N.E. 593
• Parties: LEIMGRUBER v. LEIMGRUBER.
• Court: Indiana Supreme Court

172 Ind. 370

88 N.E. 593

LEIMGRUBER

v.LEIMGRUBER.

No. 21,130.

Supreme Court of Indiana.

June 2, 1909.

On petition for rehearing. Opinion modified, and petition for rehearing overruled.

For former opinion, see 86 N. E. 73.

Wickens & Osborn and Wiley & Jones, for appellant. Bennett & Davidson, for appellee.

HADLEY, J.

Appellant's counsel present an extended argument in support of the petition for a rehearing. It is first insisted that this court erred in sustaining the lower court in overruling appellant's motion to make appellee's claim more specific. We have carefully read the argument presented by appellant, and re-examined the claim as set out in full in the original opinion, and considering that the claim, or complaint, fully sets out the nature of the demand, the dates and amounts of the several sums paid for the use of the deceased, the character of the claim for money had and received, and that all that was so claimed were certain deposits made in a local bank, and building and loan association, as current proceeds from the saloon business, running through a period of more than 7 years-all of which were matters of record, made by third parties, and easily accessible as evidence-we are satisfied to abide by the opinion formerly expressed on this point.

The most earnest criticism, however, of the opinion, is founded upon an evident mistake in the opinion, to the effect that the basis of the conclusions of law was an agreement between the husband and wife that the money proceeding from the saloon business was to be deposited in the bank, in the name and style of “Mary M. Leimgruber, Special,” but the money should be and remain the property of the husband. The original opinion is modified so as to correct the misleading statement. The facts shown by the special finding, as set forth in the opinion immediately preceding the statement referred to, clearly show that no such a statement could properly apply to the facts in the case, as determined by the trial court, and must therefore have been the result of a misprint, or inadvertence. The court did not find the existence of such an agreement beyond what may be inferred from other facts found, and no such an agreement is necessary, or at all important, to an affirmance of the judgment. It is evident that the wife was not ignorant of the husband's banking methods, for it is found as a fact by the court that she drew her personal check against the account running in the name of “Mary M....