Nelson v. Cottingham

• Decision Date: 25 January 1899
• Docket Number: 18,532
• Parties: Nelson et al. v. Cottingham et al
• Court: Indiana Supreme Court

52 N.E. 702

152 Ind. 135

Nelson et al. v. Cottingham et al

No. 18,532

Supreme Court of Indiana

January 25, 1899

From the Hamilton Circuit Court.

Affirmed.

T. J Kane, R. K. Kane and T. E. Kane, for appellants.

Roberts & Vestal and Fertig & Alexander, for appellees.

OPINION

Monks, C. J.

Appellees brought this action to set aside as fraudulent, conveyances of certain real estate made by Alvin S. and Milton H. Nelson through a trustee, to their wives, the appellants, Sarah J Nelson and Mary Nelson. Final judgment was rendered in favor of appellees, setting aside said conveyances, and ordering that said real estate be sold to pay appellees' judgments against said Alvin S. and Milton H. Nelson. Only Sarah J. Nelson and Mary Nelson appeal, and each separately assign errors. The errors assigned are: (1) The court erred in its conclusion of law; (2), the court erred in overruling the motions for judgment in her favor on the special finding of facts.

The record contains what purports to be a special finding by the court, with conclusions of law thereon; but as it does not appear that the same was made at the request of any of the parties to the action we are compelled to treat it as a general and not a special finding. Jacobs v. State, 127 Ind. 77, 26 N.E. 675, and cases cited; Sheets v. Bray, 125 Ind. 33, 24 N.E. 357, and cases cited. No question is therefore presented by the first error assigned.

Section 560 Burns 1894, section 551 Horner 1897, requires that in a special finding the court shall first state the facts in writing and then the conclusions of law upon them, "and judgment shall be rendered accordingly." This is for the purpose of enabling a party to except to the decision of the court upon the questions of law involved in the case. If a judgment rendered in such a case should not conform to the conclusions of law stated, the remedy is by motion to modify the judgment, so as to conform to the conclusions of law; but where the judgment rendered is in accordance with the conclusions of law stated, error, if any, in such conclusions, is not reached by a motion to modify the judgment, but by exceptions to each of such conclusions, and a proper assignment of error thereon in the court having jurisdiction of such case on appeal. Nading v. Elliott, 137 Ind. 261, 36 N.E. 695, and cases cited; Smith v. McKean, Adm., 99 Ind. 101, 107; Radabaugh v. Silvers, Adm., 135 Ind. 605, 35 N.E. 694, and cases cited. Therefore, when a motion is made to render judgment on a special finding which will not be in accordance with the conclusions of law if rendered, and the same is overruled and judgment is rendered in conformity with such conclusions, even though they may be erroneous, an assignment of error in this court that the court erred in overruling said motion for judgment will not present any question for decision and will be unavailable, for the reason that the correctness of the conclusions of law upon the facts found, can only be presented in this State by exceptions to each of said conclusions of law at the proper time, and assigning as error that the court erred in said conclusions. In other words, the correctness of the conclusions of law is not reached by a motion for a judgment, nor by a motion to modify or for a new trial. This has been uniformly held by this court. Royse v. Bourne, 149 Ind. 187, 47 N.E. 827; Pfau, Treas., v. State, ex rel., 148 Ind. 539, 47 N.E. 927; Lewis v. Haas, 50 Ind. 246; Lynch v. Jennings, Adm., 43 Ind. 276; Cruzan v. Smith, 41 Ind. 288; Peden's Adm. v. King, 30 Ind. 181; Elliott's App. Proc., section 793.

While the overruling of motions to render judgment on a special finding not in conformity with the conclusions of law, even though they may be erroneous, will not reverse a cause, for the reason that no question can be presented on such ruling yet if such motion were sustained and final judgment rendered according to the special finding, and contrary to the conclusions of law, they being erroneous, or if such judgment were rendered by the court of its own accord without any motion to that effect, such action of the court would render harmless the error in the conclusions of law, and would furnish no grounds for reversal because such ultimate judgment would be correct upon the facts found. White v. Chicago, etc., R. Co., 122 Ind. 317, 7 L. R. A. 257, 23 N.E. 782; Sphung v. Moore, 120 Ind. 352, 22 N.E. 319; Chicago, etc., R. Co. v. Barnes, 116 Ind. 126, 18 N.E. 459; Slauter v. Favorite, 107 Ind. 291, 300, 4 N.E. 880; Krug v. Davis, 101 Ind. 75. The finding in this case, however, is as we have held, to be treated as a general finding, and the motion for judgment in favor of...