Nading v. Elliott

• Decision Date: 06 March 1894
• Docket Number: 16,571
• Citation: 36 N.E. 695,137 Ind. 261
• Parties: Nading v. Elliott, Trustee, et al
• Court: Indiana Supreme Court

36 N.E. 695

137 Ind. 261

Nading v. Elliott, Trustee, et al

No. 16,571,

Supreme Court of Indiana

March 6, 1894

From the Shelby Circuit Court.

The judgment is affirmed.

A. C Harris, E. P. Ferris, L. Cox, J. A. Tindall, W. P. Fishback and W. P. Kappes, for appellant.

B. F Love, H. C. Morrison, K. M. Hord and E. K. Adams, for appellees.

Dailey J., Hackney, J., took no part in this opinion.

OPINION

Dailey, J.

This was a proceeding in the Shelby Circuit Court, upon the petition of John Elliott, as trustee under the last will of Martin Warner, deceased. The petition stated the amount of the funds in his hands as such trustee, and the sources from which he derived such funds, and made defendants thereto all parties having or claiming any interest in any of such trust funds, and prayed the court to render a decree construing the will and to adjudge and decree, as between the defendants, to whom such trust funds belonged, and in what proportions under the provisions of said will. Upon issues joined by answers to the petition of said Elliott, and by cross-complaints filed in said cause and answers thereto, the court tried the cause and rendered its final judgment and decree therein by which it was adjudged and decreed that the defendant Israel Williams, as executor of the last will of Amanda Benham, deceased, owned no interest in said funds. It further adjudged and decreed that the appellant, Sonora V. Nading, is entitled to receive and have from the petitioner, Elliott, as trustee under said will, and his successors as such trustee, the interest from the one-third part of said fund of $ 13,540.90, and also from the one-third of the sum of $ 807.17, interest accrued on the first named sum, less one-third of the expenses of said trust; also that the petitioner, as such trustee, and his successors, shall, during the life of said Nading, loan out the said share of said money at customary rates of interest; and adjudged and decreed that such interest should be paid to her by the trustee until her death, and thereupon to her children then living as their absolute money and property. The $ 13,540.90, and the $ 807.17, interest accrued, constituted the whole amount of the trust funds in the petitioner's hands. As appears from the record, the living children of the appellant Sonora V. Nading, are Harry J., Walter R. and Martin M. Nading, who are all minors, and William Nading is their guardian; they and their guardian are made defendants in said petition. It is also shown that appellant, Sonora, had another child that died on the 17th day of November, 1891, being before the commencement of this suit, and said William Nading was duly appointed administrator of her estate, and he in his trust capacity is made a defendant in this proceeding. By the cross-complaint of the said Sonora V. Nading, in the lower court, against her living children and their guardian, and against said William Nading as administrator of the estate of her deceased child, and also against said Elliott as trustee, and by the answer of her said children and their guardian, and of said administrator thereto, an issue was formed between her and her children and the administrator aforesaid as to the ownership of this money. From the judgment of the court below upon this question, the appellant, Sonora V. Nading, brings her appeal to this court. There was a trial upon this issue in the lower court, and at the request of the parties special findings and conclusions of law made thereon. The whole of the argument contained in appellant's brief is predicated upon supposed errors of the trial court in its conclusions of law drawn from the facts found; but it seems there is no assignment of error that in any manner brings in review before this court the correctness of such conclusions of law. Of course it is not necessary to demur to an assignment of error. Elliott's App. Proc., sections 401-402, and authorities there cited. It is said in section 401: "Defects in the assignments of errors when called to the attention of the court in the brief or argument will receive consideration, and the parties by this course can secure all the substantial benefit that a demurrer could procure." In section 402 it is said: "As errors not well assigned are disregarded there can be no possible reason for demurring. There are, on the other hand, substantial reasons why the practice of demurring should be disapproved." Sonora V. Nading's assignments of error are as follows:

1. The court erred in sustaining the motion of William Nading, guardian of Harry J. Nading and Walter Nading, minor heirs of John Nading, deceased, and as administrator of the estate of Mary G. Nading, deceased, to strike out the second paragraph of the reply of Sonora V. Nading to the answer of the said William Nading, as guardian and administrator, to the cross-complaint of Sonora V. Nading.

2. That the finding of the court is contrary to law.

3. That the court erred in overruling the motion of appellant, Sonora V. Nading, for a new trial.

4. That the judgment of the court is contrary to law.

It is a well settled rule that where there is a special finding of facts and conclusions of law stated thereon, to present any question as to the correctness of the conclusions, there must be an assignment of error upon the record of this court, that the court erred in its conclusions of law. Buskirk's Pr., p. 205; 1 Works' Prac. & Pl., section 809; Lewis v. Haas, 50 Ind. 246; State, ex rel., v. Berg, 50 Ind. 496; Selking v. Jones, Admr., 52 Ind. 409; Hartman v. Aveline, 63 Ind. 344; Elliott's App. Proced., 794.

In the case of State, ex rel., v. Berg, supra, the court said: "The plaintiff excepted to the conclusion of law, but there is no assignment of error upon the conclusions; hence, the correctness of the conclusions is not properly questioned here." Citing Montmorency, etc., Co. v. Rock, 41 Ind. 263; Cruzan v. Smith, 41 Ind. 288.

In Curry v. Miller, 42 Ind. 320 (323), this court said: "There was no exception taken to the conclusions of law drawn by the court from the facts found. This was necessary in order to present any question arising upon such conclusion."

In this, the court further said: "The record informs us that the appellant 'moved in arrest of judgment upon the finding,' but that the motion was overruled, and he excepted. This ruling is not assigned for error, even if it could be made to take the place of an exception to the conclusions of law from the facts found. Exception was taken to the rendering of judgment against the appellant. But judgment followed inevitably unless the court was wrong in its finding of the facts or in its conclusions of law upon those facts. The evidence not being in the record, and there being no assignment of error upon the overruling of the motion for a new trial, we can not say that the evidence did not sustain the court's finding of the facts; and there being no exception to the conclusions of law from the facts, if the court erred in its conclusions, the error is not so presented here as to enable us to reach it."

In view of this opinion, it is clear that the fourth specification of error, "that the judgment of the court is contrary to law," can in no event amount to an exception to the conclusions of law stated by the court upon the facts found, as the correctness of such conclusions can only be challenged in this court by assigning as error herein that the lower court erred in its conclusions of law.

As the evidence is not in the record in the case at bar, the accuracy of the facts found by the trial court could in no manner be assailed, or brought into review before this court by any assignment of error that could be made upon the record. If the evidence were before us, that question might have been available under the third assignment of error.

In Robbins v. Magee, 96 Ind. 174, 175, the court said: "The plaintiffs again appealed to this court, and have assigned eight specifications of error. The first three are that the finding is contrary to law, not sustained by sufficient evidence, and is contrary to the law and the evidence. These are not proper specifications of error. The only way to make these questions available in this court is to embrace them as reasons in a motion for a new trial, and assign error upon the overruling of the motion. If there was any such motion made in this case, there has been no error assigned upon the overruling of it. Hence these questions are not before us in any way to be considered."

It thus appears, from this quotation, that the second and fourth errors assigned by the appellant, Nading, are not proper specifications to bring the correctness of the conclusions of law in review before this court.

This doctrine finds support in Midland R. W. Co. v Dickason, 130 Ind. 164, 29 N.E. 775 (165), where it is said: "The cause was tried by the court, without the intervention of a jury, and at the request of the parties the court made a special finding of the facts and conclusions of law, upon which, subsequently, a judgment was rendered against the appellants. The errors assigned in this court are as follows: '1st. The court erred in rendering judgment on the special finding. 2d. The court erred in rendering a personal judgment against the railroad company without relief from valuation laws. 3d. The court erred in * * enforcing a lien and priority on the road in Montgomery county. 4th. The court erred in rendering a personal judgment for attorney's fees, * *.' In order to present for review in this court the correctness of the conclusions of law, deduced by the court from the facts found, two things are necessary: 1st. An exception to the conclusions of law must be taken * *. 2d. It must be assigned as error in this court tha...