People's S., L. & B. Ass'n v. Spears

• Decision Date: 20 June 1888
• Citation: 115 Ind. 297,17 N.E. 570
• Parties: People's S., L. & B. Ass'n v. Spears et al.
• Court: Indiana Supreme Court

115 Ind. 297

17 N.E. 570

People's S., L. & B. Ass'n

v.Spears et al.

Supreme Court of Indiana.

June 20, 1888.

Appeal from circuit court, Clark county; Charles P. Ferguson, Judge.Willis B. Goodwin, for appellant. J. B. Meriwether, for appellee.

Mitchell, J.

Action by the above-named corporation against Andrew J. Spears, William Fawcett, and Mary Jane Fawcett, to recover the possession of, and quiet title to, certain described real estate in the city of Jeffersonville. It is averred that the plaintiff is the owner of the land described in the complaint in fee-simple, and entitled to the possession thereof, which is wrongfully withheld by Spears, and that all the defendants claim some interest in the real estate adverse to the right and title of the plaintiff. The defendants answered jointly by a general denial. Mrs. Fawcett filed a cross-complaint, in which she alleged, among other matters not material to be stated, that in July, 1882, the defendant Spears, while in possession of the premises in controversy under a contract of purchase, and while exercising control and ownership over the property, with the knowledge and consent of plaintiff, employed the defendant William Fawcett to make some additions to or repairs upon a building situate on the premises, and that the latter had, by due compliance with the statute, acquired a mechanic's lien upon the land and building for the amount of the repairs so made. It is averred that the lien had been foreclosed, and the property sold to the cross-complainant, in pursuance of a decree of foreclosure taken by Fawcett against Spears, and that the cross-complainant had no notice of the claim or ownership of the plaintiff at the time she purchased at the foreclosure sale. She asked as relief that the interest thus acquired by her be declared superior to the plaintiff's title. The court sustained a demurrer to the cross-complaint, whereupon, after taking an exception, leave was taken to amend. So far as appears, nothing further was done in respect to the cross-complaint. Subsequently, the cause was tried without the intervention of a jury, on the issue made by the general denial to the complaint. The court found, generally, that the plaintiff was the owner in fee-simple, and entitled to the possession, of the real estate described in the complaint, and that the possession was unlawfully withheld by Spears. Judgment against Spears for possession. There is the following recital after the judgment: “It is therefore considered, ordered, and adjudged that there has been in this action no adjudication as to any alleged or supposed right, title, or interest of the other defendants, William Fawcett and Mary J. Fawcett, of any interest or claim which they, or either of them, may have to the real estate described in the complaint in this action.” The plaintiff moved the court for a new trial, assigning as ground therefor “that the decision of the court, refusing to adjudicate and determine the matter in controversy between the plaintiff and the defendants, William Fawcett and Mary Jane Fawcett, is contrary to law.” This motion was overruled, and this ruling is the only error assigned by the appellant. Mary Jane Fawcett assigns as cross-error the ruling of the court in sustaining the demurrer to her cross-complaint.

In respect to the error assigned by the appellant, it may be remarked that it does not appear, by bill of exceptions or otherwise, that any objection was made in the court below to the form or substance of the finding and judgment, or that there was any effort, by motion or otherwise, to secure any amendment to or modification of the judgment. All that appears to have been done was to move for a new trial, assigning as cause therefor that the refusal of the court to adjudicate, etc., was contrary to law. The sufficiency of a finding of judgment as regards mere matter of form cannot be questioned by a motion for a new trial, assigning as a cause therefor that the finding or decision is contrary to law; nor is a motion for a new trial the proper method by which to secure the modification or amendment of a finding or judgment. Bosseker v. Cramer, 18 Ind. 44;Machine-Works v. Chandler, 56 Ind. 575; Work, Pr. § 916. If a finding is imperfect by reason of an uncertainty or ambiguity, or by finding less than the whole...