Osterhaus v. Creviston
| Decision Date | 24 February 1916 |
| Docket Number | No. 8976.,8976. |
| Citation | 111 N.E. 634,62 Ind.App. 382 |
| Parties | OSTERHAUS v. CREVISTON et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Huntington County; S. E. Cook, Judge.
Action by Harry W. Osterhaus against Dena Creviston and others, in which defendants Creviston cross-complained. From a judgment for cross-complainants, plaintiff appeals. Affirmed.Cline & Cline and U. S. Lesh, all of Huntington, and Schorr & Wesselmann, of Cincinnati, Ohio, for appellant. Bowers & Feightner, George M. Eberhart and Sumner Kenner, all of Huntington, for appellees.
Appellant, Harry W. Osterhaus, brought suit against appellees, Dena and Jacob Creviston, and others, for partition of thirty acres of real estate in Huntington county, Ind. In substance it was alleged that on February 8, 1913, Harry Osterhaus died interstate, the owner of said real estate, leaving as his only heirs at law appellant and appellee Dena Creviston, each of whom was alleged to be the owner of the undivided one-half of said real estate; that Jacob W. Creviston was the husband of Dena Creviston, and the other defendants to the suit were alleged to have some claim or lien on the land, which is not involved here.
Issues were joined on the complaint by answer in general denial of all the defendants and by special paragraph of answer by Dena and Jacob W. Creviston. In their special answer it was alleged in substance that in 1908 said Harry Osterhaus became the owner in fee of the real estate in controversy, and gave it to appellees, Dena and Jacob W. Creviston; that in pursuance of such gift they moved upon said land, took full possession thereof, and made valuable and lasting improvements thereon, by erecting a house and barn, clearing, fencing, and ditching the land, and by otherwise improving the same, which improvements were of the value of $8,000; that they made said improvements and held possession of the land as the owners thereof, all with the knowledge and consent of said Harry Osterhaus.
Appellees also filed a cross-complaint in two paragraphs, in the first of which they alleged that they were the owners in fee simple of the real estate and asked to have their title quieted. In the second they alleged in substance that Harry Osterhaus, deceased, was in his lifetime the owner of said real estate, and that while such owner he agreed verbally with cross-complainants that he would convey and give said real estate to them in consideration of love and affection, and in consideration that they would give him a home and care for him at such times as he might see fit to make his home with them, which they agreed to do; that pursuant to said agreement and relying thereon they took possession of said real estate and improved it, in substance as above stated; that they have held the continuous possession thereof as such owners since they entered into the aforesaid agreement with decedent; that they have fully kept and performed all the terms of said agreement by them to be performed; that on February 3, 1913, said Harry Osterhaus died without having conveyed said real estate to them. Prayer that their title be quieted, and that the court appoint a commissioner to execute to them a deed for said real estate.
[1] The judgment in this case was rendered on December 9, 1913, the appeal was taken on May 13, 1914, the transcript was filed in this court on May 27, 1914, and the cause was submitted on June 26, 1914. The original appellant died on June 13, 1914, after the appeal was taken, and before the date of submission. On July 25, 1914, a petition was filed in this court asking to substitute Ruth Osterhaus, widow of Harry W. Osterhaus, and Harry Osterhaus, Jr., his son, his only heirs at law, as appellants. Notice was duly served on appellees for August 8, 1914, but the order for substitution was not made and entered of record until December 14, 1914. Appellees now ask to have the appeal dismissed, on the ground that the assignment of errors has not been amended to correspond with the order of substitution. There is no claim that the appeal is otherwise irregular or defective.
The court has no jurisdiction of the subject-matter and by the original notice of appeal acquired jurisdiction of appellees. The failure to formally amend the assignment of errors to correspond with the order of substitution does not vitiate the appeal, nor deprive appellees of any right. The order for substitution in legal effect makes the parties named the appellants, and appellees were duly notified of the fact, and are bound by the record, without the formal amendment of the assignment. Such amendment would have been proper practice, but failure so to do does not afford ground for dismissing the appeal. As affording some light on the question presented we cite sections 677, 678, 705, Burns' 1914; Bruilett's Creek, etc., Co. v. Pomatto, 172 Ind. 288, 88 N. E. 606;Helms v. Cook, 58 Ind. App. 259, 108 N. E. 147;City of Decatur v. Eady, 105 N. E. 590.
[2][3][4][5] Objection is urged to appellant's briefs that under the rules of the court no questions are presented for decision. One of the errors assigned is the overruling of appellant's motion for a new trial. The brief is justly subject to some criticism, but evidences a good-faith effort and a substantial compliance with the rules sufficient to present the question arising on the motion for new trial of the alleged insufficiency of the evidence to sustain the verdict. Palmer v. Beall, 110 N. E. 218.
The point is especially urged that there is no evidence to support the allegation of parol gift of the land to appellees by the decedent, Harry Osterhaus. In support of this contention appellant says there is no proof whatever that Harry Osterhaus ever said to the appellees, or either of them, that he intended to give them the property in question, nor that he ever made any such statement in their presence or hearing, or to any other person assuming to act as their agent in the matter; that the very basis of any agreement or gift is lacking; that loose declarations of the decedent in casual conversations with disinterested parties that the property belonged to Jacob, or that he intended it for Jake and his wife for a home,...
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