Petitt v. Petitt

• Decision Date: 27 September 1894
• Docket Number: 16,908
• Citation: 38 N.E. 179,138 Ind. 597
• Parties: Petitt v. Petitt et al
• Court: Indiana Supreme Court

38 N.E. 179

138 Ind. 597

Petitt v. Petitt et al

No. 16,908

Supreme Court of Indiana

September 27, 1894

From the Fountain Circuit Court.

The judgment is affirmed, at the costs of the appellant.

J. A Lindley and O. P. Lewis, for appellant.

C. M McCabe, J. Bingham and L. P. Miller, for appellees.

Dailey J. McCabe, J., took no part in this decision.

OPINION

Dailey, J.

This was an action instituted by the appellee Milton Petitt against the appellant, Nettie M. Petitt, for a divorce.

She appeared to the proceeding and filed her cross-complaint, making Marshall Petitt a co-defendant with said Milton Petitt, and specified therein certain causes for divorce; she also alleged that the appellees Milton Petitt and his son Marshall, in contemplation of a suit for divorce against appellant, entered into a fraudulent conspiracy to cheat her out of any judgment for alimony she might obtain, and pursuant to said conspiracy the father conveyed to the son all his farm lands without any consideration whatever, and suffered a false, fictitious, and fraudulent judgment to be taken against him by the son, upon a promissory note which was without any consideration whatever, except to cheat, hinder and delay the appellant in the collection of any judgment for alimony she might obtain in any proceedings for divorce he might institute against her.

Appellant prayed that the conveyances might be set aside as fraudulent against her, and that any judgment for alimony she might obtain be decreed a prior and superior lien against the property described in said conveyances, and also against the said judgment. Each of the appellees filed a separate general denial. The cause was submitted to the court for trial. After hearing the evidence, it granted so much of the prayer of the cross-complaint as sought a divorce and alimony, but refused to set aside the conveyances and judgment and to decree them inferior to her judgment for alimony. It also made a finding in favor of the appellee, Marshall Petitt. Appellant then filed her motion for a new trial, which was overruled, to which she excepted, and judgment was duly rendered in favor of appellee, Marshall Petitt, for costs. From this judgment she prosecutes her appeal. The only error assigned is that the court erred in overruling appellant's motion for a new trial.

Four separate reasons are stated in the motion therefor. Of these appellees' counsel have discussed the first and second, and expressly waived the third and fourth. The reasons thus remaining for the consideration of the court are as follows:

"1st. The court erred in refusing to declare and decree to be fraudulent as against cross-complainant the judgment mentioned, referred to and alleged to be fraudulent as against her in the second paragraph of cross-complaint, to wit: The judgment rendered in favor of the defendant Marshall Petitt against the defendant Milton Petitt, as prayed for by said cross-complainant in her second paragraph of cross-complaint as aforesaid; and,

"2d. The court erred in refusing to declare and decree the judgment for alimony rendered in said cause in favor of the cross-complainant against the said Milton Petitt a prior and specific lien upon the property of said Milton Petitt as against the general lien of the defendant Marshall Peittt against the said Milton Petitt, to wit: the judgment mentioned...