Prather v. Prather

• Decision Date: 14 December 1894
• Parties: PRATHER et al. v. PRATHER et al.
• Court: Indiana Supreme Court

139 Ind. 570
39 N.E. 310

PRATHER et al.
v.
PRATHER et al.

Supreme Court of Indiana.

Dec. 14, 1894.

Appeal from circuit court, Clark county; G. H. D. Gibson, Judge.

Action by Sarah Ann Prather against Minnie E. Prather and others for a partition of real estate, and to charge such estate with the value of improvements. Judgment for plaintiff, and certain of the defendants appeal. Affirmed.

[39 N.E. 311]

Douglass & Talbott, for appellants. Mr. Stannard and Burtt & Taggart, for appellee.

HACKNEY, J.

The appellee, Sarah Ann Prather, sued her coappellees and the appellants for partition, and to charge the real estate with the value of certain improvements made thereon by her. The decree directed the sale of the lands, as not susceptible of division, and gave the plaintiff a lien for $1,215 on account of improvements. Several questions arising upon the evidence have been discussed by counsel, but objection is made to a consideration of such questions, because of the insufficiency of the record to present the evidence. The decree was rendered March 25, 1893, and 60 days were given in which to file bills of exceptions. The transcript contains what purports to be a bill of exceptions presented to and signed by the judge within the time allowed, but it does not appear that such bill was ever filed with the clerk. Section 641, Rev. St. 1894 (section 629, Rev. St. 1881), makes it necessary, not only that bills of exceptions shall be presented to and signed by the trial judge, but that they be filed in the cause. Elliott, App. Proc. § 805, p. 759; Shulse v. McWilliams, 104 Ind. 512, 3 N. E. 243; Railroad Co. v. Bissell, 108 Ind. 113, 9 N. E. 144;Guirl v. Gillett, 124 Ind. 501, 24 N. E. 1036;Board v. Huffman, 134 Ind. 1, 31 N. E. 570;Mason v. Brody, 135 Ind. 582, 35 N. E. 903. The bill not being properly in the record, we must decline to entertain any question upon the evidence.

The only remaining question presented and discussed by the appellants is as to the sufficiency of the complaint. The objection urged to the complaint is that it does not allege that the improvements for which claim was made by the plaintiff were paid for by the plaintiff. The allegation is “that she has made valuable and lasting improvements on said real estate, an itemized statement of which is as follows”; stating in detail the extent and value of such improvements. In our opinion, this allegation sufficiently meets the objection urged. However, the complaint is unobjectionable as stating a cause for...