Madison Remedial Loan Association v. Wells

• Decision Date: 31 January 1923
• Docket Number: 11,516
• Citation: 137 N.E. 769,79 Ind.App. 266
• Parties: MADISON REMEDIAL LOAN ASSOCIATION v. WELLS ET AL
• Court: Indiana Appellate Court

137 N.E. 769

79 Ind.App. 266

MADISON REMEDIAL LOAN ASSOCIATION v. WELLS ET AL

No. 11,516

Court of Appeals of Indiana

January 31, 1923

From Madison Superior Court; Willis S. Ellis, Judge.

Action by Frank Wells and others against the Madison Remedial Loan Association and others. From the judgment rendered, the named defendant appeals.

Reversed.

Bagot Free & Pence, for appellant.

James A. May and J. E. Hall, for appellees.

OPINION

ENLOE, J.

This was an action by the appellees, Frank Wells and Paul Beardsley against the appellant, and also against the appellees, Glenn Miller and Everett Dunn, to foreclose an alleged motor vehicle lien. Other persons were originally named as parties defendant, but as they are not parties to the judgment herein, they need not be considered.

The appellees, Miller and Dunn, filed a cross-complaint in which they also claimed a lien upon the automobile in question, and asked that their lien be foreclosed. The appellant's demurrers to said complaint and cross-complaint were each overruled, after which it answered said complaint and cross-complaint severally, in two paragraphs. Replies severally by Wells and Beardsley and Miller and Dunn, in general denial, closed the issues which were submitted to the court for trial. There was a request that the court make a special finding of the facts and state its conclusions of law thereon. A special finding was made and conclusions of law stated favorable to the appellees, to which conclusions appellant duly excepted. There was a judgment foreclosing said liens and ordering said automobile sold.

The appellees herein insist that the so-called special finding of facts amounts only to a general finding and that therefore the appellant cannot have any exception thereto, and that consequently no question is presented for our consideration. They assert that the record does not show any "filing" of such finding of facts, or that it was made a part of the record by order of the court, or that it was brought into the record by bill of exceptions.

In this contention counsel are in error. The record recites: "* * * and pursuant to said request the court now makes and files herein its special finding of facts and states its conclusions of law thereon as follows:" This makes these findings a part of the record in this case and we shall so consider them.

The errors assigned and relied upon in this court challenge (a) the action of the court in overruling each of said demurrers and (b) the correctness of the conclusions of law stated by the court. We shall notice the last assignment first.

The court found, in substance, among other things, that on August 26, 1918, one William T. Baker, doing business under the name and style of Baker Auto Co., entered into a contract in writing with one Alva Cunningham for the sale of the automobile in question, wherein and whereby said Baker agreed to sell and said Cunningham agreed to buy, subject to the conditions in said contract, the said automobile; that said contract provided that the title to said automobile was to remain in the seller until said automobile was fully paid for; that upon default in the making of any payment the seller might, at his opinion, declare all unpaid payments due and proceed to collect the same, or that the seller might rescind the contract and at once take possession of said automobile without notice; that the seller might make such repairs on the property as he should deem necessary, and that the cost of such repairs so made should become a part of the principal debt; that the buyer should have no right or authority...