Martin v. Martin

• Citation: 20 N.E. 763,118 Ind. 227
• Decision Date: 06 April 1889
• Docket Number: 11,912
• Parties: Martin v. Martin et al
• Court: Supreme Court of Indiana

20 N.E. 763

118 Ind. 227

Martin v. Martin et al

No. 11,912

Supreme Court of Indiana

April 6, 1889

From the Wabash Circuit Court.

The judgment is affirmed, with costs.

M. H Kidd, N. G. Hunter, W. G. Sayre, J. T. Hutchens and A Taylor, for appellant.

I. D Conner, Jr., J. S. Frazer and W. D. Frazer, for appellees.

Berkshire J. Mitchell, J., took no part in this decision.

OPINION

Berkshire, J.

The complaint, as originally filed, contained but one paragraph, but afterwards second, third and fourth paragraphs were filed. To each paragraph a demurrer was filed by the appellees John T. and Matilda Kendall. The court sustained the demurrers to the first, third and fourth paragraphs, and overruled the demurrer to the second paragraph, and proper exceptions were reserved. Afterwards an amended third paragraph and two additional paragraphs of complaint, numbered five and six, were filed. To these paragraphs the appellees Kendall demurred, and the court overruled the demurrers. An answer was then filed in seven paragraphs. To all of these paragraphs, except the first, which was the general denial, the appellant filed demurrers; the demurrers were sustained to the sixth and seventh paragraphs and overruled as to the others, and the appellant reserved his exceptions. The appellant then replied in two paragraphs. To the second paragraph the appellees Kendall demurred and the demurrer was sustained, and the appellant saved the proper exception.

The cause then being at issue, it was submitted to a jury for trial, who afterwards returned a verdict for the appellant, and the court rendered a judgment in his favor on the 18th day of May, 1881. On the 5th day of December, 1881, the appellees Kendall moved the court for a new trial, as of right, and proved to the court that they had paid the costs that had accrued in the action, and the court set aside the judgment and granted to them a new trial. On the 28th day of March, 1882, the appellees Kendall again came before the court and moved for a new trial, as a matter of right, and tendered a bond as required by section 1064, R. S. 1881, and the court, without setting aside the former order that had been made, approved the bond and again made an order granting a new trial. On the 6th day of December, 1883, the appellees Kendall filed an amended sixth paragraph of answer, to which the appellant demurred, which demurrer was overruled, to which ruling of the court an exception was taken by the appellant. The appellant then filed a reply in two paragraphs, to the second of which the appellees Kendall demurred; the demurrer was sustained, and the proper exception reserved by the appellant. The appellant then demanded a jury trial as to the issues joined on all of the paragraphs of complaint, which the court denied, except as to the issues joined on the fifth paragraph, and the appellant saved the proper exception.

The issues joined were then submitted to a jury as to the fifth paragraph, and as to all the other paragraphs submitted to the court. After the evidence had all been introduced the court directed the jury to return a general verdict, and to answer and return therewith certain interrogatories, which the court submitted to them, and the jury did as directed, and thereupon the court found for the appellees as to all the issues in the case. The appellant then moved the court for a new trial, which motion the court overruled, and the appellant saved the proper exception, and the court rendered judgment for the appellees. The errors assigned are the following:

1st. The court erred in sustaining the demurrer to the first paragraph of the complaint.

2d. The court erred in overruling the demurrers to the second, third, fourth and fifth paragraphs of the answer.

3d. The court erred in granting a new trial, as of right, at the November term, 1881.

4th. The court erred in setting aside a former order and granting a new trial at the February term, 1882.

5th. The court erred in overruling the several motions of the plaintiff to vacate the orders for a new trial at the April term, 1882.

6th. The court erred in overruling the demurrer to the amended sixth paragraph of answer.

7th. The court erred in sustaining the demurrer to the second paragraph of reply to the amended sixth paragraph of answer.

8th. The court erred in overruling the motion for a new trial.

It will not be necessary for us to consider the first paragraph of the complaint, because, if it was a good paragraph, there was no available error in sustaining the demurrer thereto, as the same facts were provable under the second paragraph.

The second and third paragraphs of complaint alleged that Joel Martin was the father of the appellant; that he held certain real estate in trust for the appellant, and died leaving the trust unexecuted; that before his death he executed his last will and testament, whereby he devised said real estate to the appellee Matilda Kendall, and then follows a prayer for the execution of a deed, for possession, and to quiet title by a decree of the court.

There is some difference in the averments, but the general statement above covers substantially the causes of action stated in the two paragraphs.

The fifth paragraph is an ordinary complaint in ejectment, and the sixth is a paragraph for the specific performance of a parol contract of purchase of real estate.

The second and fourth paragraphs of answer are separate answers by the appellee Matilda Kendall. The second paragraph alleges an adverse possession of the real estate for twenty years immediately before the bringing of this action, and the fourth paragraph alleges that the cause of action did not accrue within twenty years next before the bringing of the action. We are unable to see any infirmity in these paragraphs of answer. The third paragraph is pleaded as the separate answer of the appellee John T. Kendall. The answer avers that he is the husband of his co-appellee, Matilda Kendall, and that she is the fee simple owner of the real estate, and entitled to its possession. This paragraph of answer amounts to a denial, and is therefore a good answer.

The fifth paragraph of answer is pleaded jointly by Lewellen and Nancy Martin, two of the appellees. This paragraph avers that the title to the real estate is in Matilda Kendall, to whom it was conveyed, followed by a disclaimer of any interest in the real estate. This paragraph is a mere denial of the appellant's cause of action, and is therefore sufficient as an answer.

The sixth paragraph of answer, as amended, is a plea of the statute of limitations, jointly by the appellees Kendall. It alleges that the appellant's cause of action, as pleaded in each paragraph of his complaint except the fifth paragraph, did not accrue within fifteen years before the institution of the suit.

We are of the opinion that this is a good answer. There is no other period of limitation, as fixed by the statute, applicable to the paragraphs of the complaint to which this answer is pleaded, therefore the fifteen years' limitation, as provided in section 294, R. S. 1881, must apply. See Nutter v. Hawkins, 93 Ind. 260; Caress v. Foster, 62 Ind. 145; Albert v. State, ex rel., 65 Ind. 413; Potter v. Smith, 36 Ind. 231; Eve v. Louis, 91 Ind. 457; Scherer v. Ingerman, 110 Ind. 428, 11 N.E. 8.

The second paragraph of reply to the amended sixth paragraph of the answer was bad, and the court committed no error in sustaining the demurrer thereto.

The order granting the new trial as of right, on December 5th, 1881, was probably erroneous, as no bond was tendered and approved by the court as required by section 1064, R. S. 1881, which was then in force.

Afterwards, on the 28th day of March, the appellees having tendered a bond, as required by said section 1064, which was approved by the court, on appellees' motion, a new trial was again granted to them as of right. We are of the opinion that this cured the error, and that the new trial was properly granted. There can be no doubt that, if the court had formally set aside the first order granting a new trial, the error in granting the same would have been cured. The record would have then stood as though no action had taken place looking to a new trial, and the second order would have been proper. The only objection made to the second order is, that the court had no power to grant a new trial the second time, while the first order was in existence. The court did, substantially, that which we have indicated it had the right to do. The granting of the new trial the second time had the effect to wipe out and set aside the first order made.

We have not considered the question as to whether or not the action was one in which the appellees were entitled to a new trial as of right, for no such question is presented by the record.

We are of the opinion that the court committed no error in overruling the motions to set aside the orders vacating the judgment and granting a new trial.

The second reason assigned for a new trial is, that the court erred in admitting certain evidence given by a witness named Watson. We have examined his evidence, and particularly that to which objection is made. In part it consisted of a conversation with John H. Martin, the appellant. We can imagine no valid objection to this evidence; his declarations were certainly competent evidence for the opposite party. The remainder of the evidence of the witness, to which objection is made, relates to the acts of Joel Martin, who held the legal title to the land, with reference to it, such as making improvements thereon, cultivating the land, and the like. This evidence, we think, was competent and very pertinent to the issues.

The third and sixth reasons assigned for a new trial are,...