Miller v. Muir

• Decision Date: 26 September 1944
• Docket Number: 17227.
• Parties: MILLER v. MUIR.
• Court: Indiana Appellate Court

56 N.E.2d 496

115 Ind.App. 335

MILLER v. MUIR.

No. 17227.

Appellate Court of Indiana, in Banc.

September 26, 1944

Appeal from Grant Circuit Court; Oliver D. Clawson, Judge.

Linder, Seet & Rigot, of Indianapolis, for appellant.

Kane Blain & Hollowell, Leon J. Mills, and David F. Smith, all of Indianapolis, for appellee.

ROYSE Judge.

Appellee brought this action against appellant for possession of real estate located in the City of Indianapolis. In her second amended complaint appellee alleged she was the owner of the real estate in question; that she had leased said real estate to appellant; that the lease had expired and appellant refused to gave appellee possession thereof.

Appellant filed an answer to this complaint which, in substance, denied appellee was the owner of or entitled to possession of said real estate and averred she never in fact leased said real estate to appellant. The answer further averred that on January 18 1940 and prior thereto, there were two causes of action involving said real estate pending in the Boone Circuit Court, and the parties hereto were parties to those actions; that prior to said last-mentioned date said Boone Circuit Court consolidated said causes of action and on or about said date there was made and entered in the records of said court a judgment in rem against said real estate, a portion of which judgment was in favor of appellee herein in the sum of $1200, which was found as a first and prior lien against said real estate, and a further judgment in favor of appellant herein in the sum of $2500; and that said judgment was a valid and existing lien against said real estate, junior only to the lien in favor of appellee; that this was the only valid and existing judgment made by said Boone Circuit Court. No execution was ever issued on said judgment or sale made.

It is further averred in the answer that subsequent to the entry of said judgment appellee individually and through her attorneys and agents and one Forrest Hackley, who was appellant's attorney in the trial of said causes in said Court, entered into a scheme and conspiracy to cheat and defraud appellant out of his interest in said real estate by procuring from him the release of said judgment and lien. Pursuant to said scheme, after said judgment was entered said Hackley called on appellant (who was an aged and uneducated man with poor eye sight) and represented that if he would sign certain papers which Hackley presented to him, the lien of this appellant would be paid, but if they were not signed the real estate would be sold and appellant would lose all of his interest in said property; that at no time was it stated to appellant that the purpose of said writings was to in any manner change his interest as evidenced by said judgment. He believed and relied on the advice and counsel of said Hackley. He had no copy of said writings and was informed at the time of filing this answer that said writings constituted an option to appellant to purchase said real estate from appellee; that said writings recited appellant waived all right, title and interest in and to said real estate, and consented to permit a judgment to be entered in the Boone Circuit Court quieting appellee's title to said real estate as against this appellant; that if appellant had known of the contents of said writings he would not have signed same; that immediately upon learning of the fraud and change of said judgment, this appellant brought his action in the Boone Circuit Court to re-establish said judgment, which action was pending at the time of the filing of the answer.

Thereafter, before the trial of this cause, appellant filed his supplemental answer which, in substance, alleged that subsequent to the filing of appellant's answer the Boone Circuit Court heard and determined appellant's action to re-establish the judgment of January 18, 1940, and that by its judgment said court set aside the purported order of said court quieting the title of appellee in and to said real estate, and the judgment of said court fixing the amount and priority of the liens of the parties hereto was ordered placed of record as of January 18, 1940.

Upon proper request the trial court made a special findings of fact and stated as its conclusions of law: (1) the law was with the appellee and against appellant; (2) that at the time appellee commenced her action she was entitled to possession of the real estate described. Judgment accordingly.

The assignment of errors here is as follows:

'1. That the Court erred in each of its conclusions of law stated on its special finding of facts.

'2. That the Court erred in its first conclusion of law on its special finding of facts; to-wit: That the law is with the plaintiff and against the defendant.

'3. The Court erred in its second conclusion of law on its special finding of facts; to-wit: That at the time the plaintiff commenced her action herein she was entitled to the possession of the real estate described in the complaint.

'4. The Court erred in overruling appellant's motion for a new trial'.

There were four specifications in the motion for a new trial, which are as follows:

'Specification 1. The decision of the Court is not sustained by sufficient evidence.

'Specification 2. The decision of the Court is contrary to law.

'Specification 3. The Court erred in each of its conclusions of law, to-wit:

'First, That the law is with the plaintiff and against the defendant.

'Second, That at the time the plaintiff commenced her action herein, she was entitled to the possession of the real estate described in the complaint.

'Specification 4. The Court erred in overruling defendant's objection to the admission in evidence of plaintiff's Exhibit C being a copy of the Entry made by the Boone Circuit Court and which Entry at the time of this trial and long before had been vacated and adjudged null and void by the said Boone Circuit Court and had been stricken from the records of said Court, and to which ruling of the Court admitting said Exhibit in evidence, the defendant at said time duly excepted.'

Appellee contends the fourth assignment of error presents no question because the specific errors relied upon as presented by the motion for a new trial are not set out. With this contention we do not agree. The case of Husak v. Clifford et al., 1912, 179 Ind. 173, 178, 100 N.E. 466, relied on by appellee, does not so hold. In that case the Supreme Court held that where the appellant's brief under Points and Authorities merely restated the assignment of error that the court erred in overruling the motion for a new trial without referring to the specifications in said motion, no question was presented. In the instant case the fourth error is in proper form and the appellant has discussed certain of the specifications of his motion for a new trial under points and Authorities. Zimmerman v. Gaumer, 1898, 152 Ind. 552, 53 N.E. 829; Teeple, Trustee, v. State ex rel. Bower et al., 1908, 171 Ind. 268, 86 N.E. 49; Kelley et al. v. Bell, 1909, 172 Ind. 590, 88 N.E. 58.

Appellant in his brief under Points and Authorities asserts that substantially the same question is presented by his first three assignments of error and Specification 2 of his motion for a new trial, and therefore, pursuant to Rule 2-17-(f) of the Rules of the Supreme Court, treats these errors under one set of Propositions, Points and Authorities.

Appellee contends the only question presented thereby is the correctness of the Conclusions of Law upon the special findings of fact because she asserts an assigned error as to a conclusion of law assumes the correctness of the special findings of fact, while under the specification of the motion for a new trial that the decision of the courts is contrary to law, the court considers the sufficiency of the evidence to sustain the findings. Appellee is technically correct in this contention. However, we are of the opinion that the manner in which appellant has presented the questions shows a good-faith effort to comply with the rules of the Supreme Court.

Appellant contends that by his supplemental answer he brought before the court the whole subject matter of the action as it existed at the time of the trial. Appellee contends the supplemental answer was an attempt to change the original issues and therefore should be disregarded.

Supplemental pleadings are authorized by our Statute, § 2-1072, Burns' 1933. The purpose of such pleading is to bring the subject matter of the action fully before the court as it exists down to the time when no further action in the matter is required by the court. Higgins et al. v. Swygman et al., 1923, 194 Ind. 1, 5, 6, 144 N.E. 788. In the instant case the supplemental answer of appellant did not change the original issues. It merely supplemented the answer already filed by showing that since the original answer was filed the proceedings therein alleged to have been pending in the Boone Circuit Court had been finally determined and that court had directed a nunc pro tunc entry as of January 18, 1940 adjudging appellee to have to a first lien on the real estate in the sum of $1200 and appellant a lien of $2500 junior only to the lien of appellee, and that if said liens were not paid within ten days the real estate was to be sold. We regard the original and supplemental answers as constituting appellant's answer to the complaint herein. State ex rel. Julian v. Board of Metropolitan Police Commissioners of City of Logansport, 1908, 170 Ind. 133, 138, 83 N.E. 83; Richwine v. Presbyterian Church of Noblesville, 1893, 135 Ind. 80, 83, 84, 34 N.E. 737.

The principal question to be determined in this action is whether or not appellee was entitled to the possession of the real...