Lindley v. Kemp
| Decision Date | 15 December 1905 |
| Docket Number | No. 5,457.,5,457. |
| Citation | 76 N.E. 798,38 Ind.App. 355 |
| Parties | LINDLEY v. KEMP et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Randolph County; Henry C. Fox, Judge.
Action by Mary E. Lindley against Benjamin F. Kemp and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed in part, and otherwise reversed.Nichols & Carter, for appellant. Engle, Caldwell & Parry, for appellees.
This is an action by appellant against appellees for damages. A single paragraph of complaint was answered by appellees Wooten and Wooten (1) in general denial; (2) setting up the statute of limitations. Like answers by appellee Kemp. To appellees' special answer appellant replied (1) in general denial; (2) concealment of her cause of action. The issues thus formed were tried by a jury, and interrogatories submitted to them were answered and returned, with a general verdict for appellant. Judgment for appellees on the answers to the interrogatories notwithstanding the general verdict. The only error assigned is based upon the ruling of the court in sustaining the separate and several motions of appellees for judgment non obstante veredicto.
1. Appellees contend that this court ought not to consider any of the alleged reasons for a reversal of this cause, for the reason that it is impossible to tell from the record what the issues were before the trial court. We take the following statement from the record: On October 30, 1901, the complaint was filed. On November 13, 1901, appellees filed a joint motion, and on March 14, 1902, appellee Kemp filed his separate motion, and Wooten and Wooten their joint motion, to strike out certain parts of the complaint. By reference to the motions copied in the record it will be seen that the words sought to be stricken out of the complaint are not set forth, but are indicated by references to pages and lines of the complaint. This is not a sufficient statement of the parts stricken out. Acts 1903, p. 339, c. 193, § 2. By an order book entry copied in the record it appears that these motions were by the trial court sustained in part and overruled in part. It is true that this entry does not disclose what parts of the complaint are stricken out, but, even if it did, the ruling and motions are not in the record by a bill of exceptions or by an order of the court, and for that reason they cannot be considered as a part of the record for the purpose of showing that any such motions or rulings were made. Crystal Ice Co. v. Morris, 160 Ind. 651, 67 N. E. 502;Dudley v. Pigg, 149 Ind. 363, 48 N. E. 642. Therefore, under the rule imputing absolute verity to the record, this court must consider the complaint as found in the record. The cases of Fairbank v. Lorig, 4 Ind. App. 451, 29 N. E. 452, 30 N. E. 930,De Kalb National Bank v. Nicely, 24 Ind. App. 147, 55 N. E. 240, and Union City, etc., Co. v. Jaqua, 26 Ind. App. 160, 58 N. E. 508, upon this particular point are, by Crystal Ice Co. v. Morris, supra, overruled.
2. Appellees also insist that the præcipe does not direct that the interrogatories submitted to the jury and their answers thereto be made a part of the transcript, and, although copied into the record, the clerk's certificate does not show such interrogatories to be the ones submitted to the jury, or that they had been correctly copied, and for these reasons no question is presented for our consideration. We think these objections too technical, and ought not to prevent the consideration of this cause upon its merits. That part of the præcipe referred to by appellees reads as follows: “All entries of the trial in this cause, the verdict of the jury, both special and general, defendant's motion for judgment on answers to interrogatories notwithstanding the general verdict, and judgment thereon.” The clerk's certificate in this particular is identical with that of the præcipe. It will be noticed that the error based on the ruling of the court is properlyassigned. The General Assembly of this state in 1897 (Acts 1897, p. 128, c. 85; section 555, Burns' Ann. St. 1901) amended our laws concerning civil procedure with reference to forms of verdicts found by juries, and by section 1 provided The jury found a general verdict. They found upon particular questions of fact, submitted to them in the form of interrogatories. These interrogatories were submitted and recorded with the general verdict. They appear as a part of the proceedings of this cause, and as a part of the same order book entry in which the verdict of the jury is recorded. That part of the order book entry referring to the interrogatories reads as follows: “The jury also returned the interrogatories submitted to them by the court, together with their answers thereto, which such interrogatories and answers are in these words, to wit.” Then follows a copy of the interrogatories and answers, each signed by the foreman of the jury. They are a part of the record, without a bill of exceptions or an order of the court. They are included by the request for “all entries of the trial in this cause.” For, by the general acceptation or use of the word, “trial” includes “all the steps taken in the case from submission to the jury to the rendition of judgment.” Anderson's Dic. of Law, 1054; Bruce v. State, 87 Ind. 450, 453;Jenks v. State, 39 Ind. 1, 9.
It is apparent that the words “special verdict,” as used in the præcipe and in the clerk's certificate to the transcript, had reference to the interrogatories and the answers thereto, and we cannot disregard them because of a misnomer, or because their treatment by the parties would seem to assign to them an effect not now authorized by our Code of Civil Procedure. See Louisville, etc., Co. v. Balch, 105 Ind. 93, 97, 4 N. E. 288. In Powell v. Bunger, 91 Ind. 64, 72, the court, in speaking of a præcipe, recognized a liberal rule of construction by saying, “This court will not be prevented, by informality or omission in appellants' written directions for a transcript, from looking into any portion of the record before it, as may become necessary to a proper decision of the cause.” See, also, Elliott's Appellate Procedure, §§ 200, 201.
3. In passing upon the real question here presented, we are confronted with a complaint containing many alleged fraudulent representations, and abounding with allegations of tortious acts, many of which within themselves would support an action for damages; but, upon the theory of fraud as a basis of recovery, a reasonably full statement of the facts appearing in the complaint will not be out of place, because, as said by Chancellor Kent (2 Kent, 484), “A deduction of fraud may be made, not only from deceptive or false representations, but from facts, incidents, and circumstances which may be trivial in themselves, but decisive evidence in the case of a fraudulent design.” From the complaint it appears that on April 1, 1890, appellant was the owner of a life estate in certain described real estate in Randolph county, Ind., containing 80 acres; that four of her children, including Emma L. Dougherty and appellee Susie A. Wooten, were the owners of the land in fee; that another of her children, Zenas C. Lindley, a minor, was the owner of a 40-acre tract in the same county; that appellant had the management of her son's real estate, and was in possession of both tracts; that on said 1st day of April, and for a long time prior thereto and thereafter, appellees conspired and confederated together to cheat and defraud appellant and her children, except appellee Susie A. Wooten, out of their real estate by falsely and fraudulently pretending and representing to appellant and Emma L. Dougherty that appellant did not have to pay any taxes on the real estate, that she was a widow, and her son an orphan, and by reason thereof the lands could not be taken from them for taxes, and that neither should pay any attention to the payment of taxes or to any notice for the payment thereof; that during the time of the making of said false and fraudulent representations appellees Wooten and Wooten lived with appellant on the real estate, and took possession of and appropriated to their own use all of the proceeds arising therefrom, with the knowledge and connivance of appellee Kemp, for the purpose of depriving appellant of any means with which to pay her taxes; that appellant was at the time an old woman, a widow, infirm by reason of her age and ill health, inexperienced in business affairs, ignorant of the law concerning such matters, and by reason of her age, infirmity, inexperience, and ignorance of the law was incapable of attending to her affairs; that appellees herein well knew of the helpless condition of appellant; that appellee Kemp was and is appellant's brother, a minister of the gospel, and a successful business man, who had at said time accumulated a large estate, and that by reason of his relationship, his great profession as a Christian, his successful business management and career, she (appellant) and said Emma L. had great faith and confidence in him, and relied upon him generally for counsel, and especially relied upon him as to his false and fraudulent representations concerning her taxes, and by reason of such reliance failed to give any attention to her taxes; that all of her said children were unable to pay said taxes, except...
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