Morsches-Nowels Lumber Co. v. Pence

• Decision Date: 07 February 1939
• Docket Number: No. 15948.,15948.
• Citation: 18 N.E.2d 958,106 Ind.App. 219
• Parties: MORSCHES-NOWELS LUMBER CO. v. PENCE et al.
• Court: Indiana Appellate Court

106 Ind.App. 219

18 N.E.2d 958

MORSCHES-NOWELS LUMBER CO.

v.PENCE et al.

No. 15948.

Appellate Court of Indiana, in Banc.

February 7, 1939.

Appeal from Marshall Circuit Court; Albert B. Chipman, Judge.

Action by the Morsches-Nowels Lumber Company against Willard Pence and others to replevy certain logs. Judgment was rendered for the defendant, plaintiff's motion for new trial was overruled, and plaintiff appeals.

Judgment affirmed.Gates & Gates, of Columbia City, Kitch & Kitch, of Plymouth, and Cleon H. Foust, Jr., of Columbia City, for appellant.

Brubaker & Rockhill and L. W. Royse, all of Warsaw, for appellees.

BRIDWELL, Judge.

Appellant prosecuted this action against appellees to replevy 869 logs. The complaint alleged ownership, and right to immediate possession on the part of appellant, and that appellees held possession of said logs without right, and were unlawfully detaining same from appellant to its damage. The answer was in general denial. The cause was submitted to the court for trial, and upon proper request therefor, the court made and filed its special finding of facts, and stated its conclusions of law thereon. Both were in favor of appellees. Appellant did not except to the conclusions of law, nor to either of the four conclusions stated. Judgment in accordance with the conclusions of law was rendered. Appellant duly filed its motion for a new trial, which was overruled, to which ruling appellant excepted, and thereafter perfected this appeal.

[1] The assignment of errors contained fourteen specifications of error, but only one of them--that the court erred in overruling plaintiff's (appellant's) motion for a new trial--is discussed under the heading “Propositions and Authorities” in appellant's original brief, and in the reply brief appellant expressly states this assigned error is the only one relied upon for reversal. All other claimed errors are therefore waived.

The motion for a new trial, omitting its formal parts, is as follows:

“The plaintiff in the above entitled cause moves for a new trial herein on each of the following grounds:

“1. Special Finding of Fact No. 4 as found by the court is not sustained by sufficient evidence and is contrary to law.

“2. Special Finding of Fact No. 10 as found by the court is not sustained by sufficient evidence and is contrary to law.

“3. Special Finding of Fact No. 13 as found by the court is not sustained by sufficient evidence and is contrary to law.

“4. The court erred in admitting in evidence, over objection of the plaintiff the following evidence: The mortgage executed by defendants, Willard Pence and Bertha M. R. Pence, in the sum of Two Thousand and no/100 Dollars ($2,000.00) to Land Bank Commissioner * * * *.

“5. Special Finding of Fact No. 15 as found by the court is not sustained by sufficient evidence and is contrary to law.

“6. Special Finding of Fact No. 16 as found by the court is not sustained by sufficient evidence and is contrary to law.

“7. Special Finding of Fact No. 20 as found by the court is not sustained by sufficient evidence and is contrary to law.

“8. The trial court erred in his Special Finding of Fact by failing to include in said Findings a finding that the defendants after the recording of their deed for the real estate and prior to the instituting of this case of action sold and removed from said real estate timber for which defendants received one Hundred and no/100 Dollars ($100.00), which consisted of 23,000 feet of timber. That said facts were proved, upon the trial of the cause by uncontradicted evidence, and should have been included in the Special Finding of Fact by the court.

“9. The trial court erred in his Special Findings of Fact by failing to include in said Findings a finding that the deed from S. J. Peabody Lumber Company to Willard Pence and Bertha M. R. Pence was prepared on the evening of September 16, 1929, the day upon which the contract was executed. That said fact was proved upon the trial of the cause by uncontradicted evidence, and should have been included in the Findings of Fact by the court.

“10. That Conclusion of Law Number One as decreed by the court is erroneous and not sustained by the evidence.

“11. That Conclusion of Law Number Two as decreed by the court is erroneous and not sustained by the evidence.

“12. That Conclusion of Law Number Three as decreed by the court is erroneous and not sustained by the evidence.

“13. That Conclusion of Law Number Four as decreed by the court is erroneous and not sustained by the evidence.

“Wherefore, the plaintiff prays the court for a new trial of said cause.”

[2] It is to be noted that the motion for a new trial does not assign as a cause therefor either that the decision of the court is not sustained by sufficient evidence, or that the decision of the court is contrary to law....