Miller v. Evansville National Bank

• Decision Date: 16 October 1884
• Docket Number: 11,795
• Citation: 99 Ind. 272
• Parties: Miller et al. v. The Evansville National Bank
• Court: Indiana Supreme Court

99 Ind. 272

Miller et al. v. The Evansville National Bank

No. 11,795

Supreme Court of Indiana

October 16, 1884

Rehearing Date: January 2, 1885

Reported at: 99 Ind. 272 at 277.

From the Superior Court of Vanderburgh County.

C Denby and D. B. Kumler, for appellants.

A Iglehart, J. E. Iglehart, E. Taylor and V. Bisch, for appellee.

Franklin, C. Hammand, J.

OPINION

Franklin, C.

Appellee commenced this action to set aside as fraudulent several conveyances of real estate in Vanderburgh and Posey counties, including some city property in Evansville, and to subject parts of the same to the payment of certain judgments in favor of appellee, and prayed for a quieting of the title in it to portions of said real estate that had been purchased by appellee under said judgments at a sheriff's sale thereunder, and for the sale of the remainder of said real estate to pay the balance of said judgments.

Demurrers were overruled to the complaint, and the defendants filed answers of general denial and their several cross complaints, asking to have their respective titles quieted to the portions thereof claimed by each of them.

Upon the trial the court found in favor of the plaintiff as to parts of the real estate, and in favor of some of the defendants as to other parts, and over motions for a new trial judgment was rendered upon the finding.

A motion to submit the trial of a certain fact in issue to a a jury was overruled, and a motion for a new trial as of right under the statute was also overruled.

The errors assigned are the overruling of the demurrer to the complaint, the overruling of the motion to submit to a jury the trial and determination of the question of fact as to whether Catharine Miller had paid a full consideration for the land conveyed to her, the overruling of the motion for a new trial, and the overruling of the motion for a new trial as of right under the statute.

The objection urged against the complaint is that it contains a misjoinder of causes of action, in this, that it seeks to set aside the deeds as fraudulent, and to quiet the title in the plaintiff.

So far as the ruling upon the demurrers to the complaint is concerned, it is wholly unnecessary to investigate and decide whether the complaint contains sufficient averments to make a good cause of action to quiet title or not. If it does, the 341st section of the R. S. 1881 expressly provides that "No judgment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action." Hence there could be no available error in overruling a demurrer to the complaint for that cause.

The specification of error that the court overruled appellants' motion to submit a certain question of fact to the trial and determination of a jury, is not well taken. This is a chancery suit, and under the recent statute was required to be tried by the court. While the court had the right to submit a question of fact to a jury to decide for the information of the court, still their verdict in such cases is not binding upon the court, and it is entirely within the discretion of the court as to whether it will seek such information by a jury. But this specification does not appear to be insisted upon by appellants in their brief, and may be considered as waived.

Appellants have insisted at considerable length, and with great ingenuity and ability, that the finding of the court is not sustained by sufficient evidence, and that a new trial should have been granted.

The evidence is very voluminous, and in some instances contradictory. We have examined it far enough to definitely ascertain that a portion of the evidence, with the surrounding circumstances, strongly tends to support the finding of the court. But the appellants claim that the ordinary rule, where the evidence clearly tends to support the finding, this court will not weigh it and reverse the judgment upon a mere preponderance, ought not to apply to this class of cases; that this is an action in the nature of a chancery suit, and that this court should weigh the evidence and decide upon its merits; that this court is as capable of weighing the evidence as was the court below, and that the old chancery practice should be applied.

Under the old practice, in the appellate courts, actions at law were determined upon writs of error, and chancery suits by trial de novo upon the evidence, it all being in the shape of depositions, and final judgments were rendered therein without remanding the case to the lower court for a new trial. Upon the adoption of the code practice, writs of error and the distinctions in the forms between common law and chancery practice were abolished, and since that time all cases alike come to this court on appeal, in which the evidence, whether oral or in depositions, might be brought by bill of exceptions.

Under this code practice of appeals, when a judgment is reversed by this court, no final judgment upon the merits is rendered, but the cause is remanded to the lower court for further proceedings, and the rule first adopted upon the subject of weighing the evidence was, that if the verdict or finding upon the whole evidence was clearly wrong, the judgment was reversed for that reason. But practice demonstrated that this rule was of uncertain enforcement, and it is a well known fact that the judge who saw the witnesses, heard them testify, and observed their demeanor on the witness stand, was much better enabled to weigh the evidence and come to a correct conclusion than this court could possibly be by only seeing the record of the evidence, which is seldom full and frequently imperfect.

From these considerations, the rule is now well established that where the evidence fairly tends to support the verdict or finding, it will not be disturbed by this court, and this rule applies to causes in the nature of chancery suits, the same as actions at...