Myers v. McGowen, 20211
| Decision Date | 14 December 1965 |
| Docket Number | No. 20211,No. 1,20211,1 |
| Citation | 138 Ind.App. 163,212 N.E.2d 411,7 Ind.Dec. 256 |
| Parties | Raymond Merle MYERS and Nellie V. Myers, Appellants, v. Barbara J. McGOWEN and Harold McGowen, Appellees |
| Court | Indiana Appellate Court |
[138 INDAPP 163] Stevens & Wampler, Lloyd Wampler, Plymouth, Brown & Brown, Jesse A Brown, Rochester, Ruckelshaus, Bobbitt & O'Connor, Arch N. Bobbitt, Indianapolis, for appellants.
Bryon C. Kennedy, Herbert H. Bent, Warsaw, Albert B. Chipman, Plymouth, for appellees.
[138 INDAPP 164] PRIME, Chief Justice.
Before proceeding to the merits of the case at bar, we must rule upon Appellant's Motion to Reverse Judgment. Appellants have based their motion upon the fact that appellee failed to file an answer brief within the time required by Rule 2-15 of the Supreme Court of Indiana. An examination of entry dates reveals that while appellee did file a brief it was sufficiently late so as to constitute a violation of Rule 2-15, and we are therefore prevented from considering it in our decision of this case.
The above notwithstanding, we must nevertheless overrule the appellant's motion to reverse judgment since said motion, in addition to asking that this court disregard the appellee's answer brief, further states that appellant's brief presents a prima facie case for reversal. With this latter contention we cannot agree.
In 1946, appellants offered their son and his fiancee, the appellee here, a plot of ground from appellant's one hundred acre farm for a homesite. The plot given was bordered on the north side, or so the parties thought, by a fence which had stood prior to the time at which appellants had acquired the farm. The appellants' son and appellee, then his wife, built a home on said property, and sometime in 1948 moved into and occupied said home. In 1950, appellants deeded the land to their son and the appellee, and shortly thereafter the son built a barn upon this land some twenty feet south of the north fence. At some time after the erection of the barn and prior to 1956, the barn burned down and was subsequently rebuilt.
In 1956, the appellants' son and appellee were divorced and the appellee received the land in the property settlement. Several years after the divorce, the appellants caused a survey to be made and it was discovered that the north edge of the property owned by appellee extended only to 32 feet south of the above mentioned fence, rather than to the fence as the parties had assumed. It was further discovered that the barn of the appellee extended north of the true boundary line [138 INDAPP 165] some 12 feet, and was actually built partly upon ground still owned by appellants.
Appellants brought this action below to enjoin appellee from using the land between the boundary line and fence; for a mandatory injunction for the removal of encroaching improvements; and for damages. Appellees, the former daughter-in-law of appellants and her present husband, filed an answer with affirmative paragraphs alleging estoppel and asking for a reformation of the deed due to mutual mistake.
The court below, sitting without jury, entered a finding in favor of the appellees on their answer and against the appellants on their complaint.
Appellants subsequently filed a motion for new trial, the overruling of which is the basis for this appeal. The errors assigned in said motion were that: (1) The decision of the court is not sustained by sufficient evidence, and (2) the decision is contrary to law. In their brief, appellants contend that the decision is contrary to law because of the lack of substantial evidence and have grouped both alleged errors into a single argument.
Appellants, in point two of the argument portion of their brief, claim that appellees have failed to prove any of the elements of estoppel.
[2, 3] Upon examining the record to find the evidence most favorable to the appellee, we find that appellant testified that from his own home he was able to observe daily his son and daughter-in-law in the process of building the barn upon the strip of ground in question. In...
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