Radabaugh v. Silvers
| Decision Date | 12 December 1893 |
| Docket Number | 15,701 |
| Parties | Radabaugh v. Silvers, Administrator |
| Court | Indiana Supreme Court |
From the Wells Circuit Court.
The judgment is affirmed.
E. R Wilson, J. J. Todd, A. L. Sharp and C. E. Sturgis, for appellant.
A. N Martin, E. C. Vaughn, L. Mock and L. B. Simmons, for appellee.
McCabe J. Dailey, J., took no part in the decision of this case.
The appellee, as administrator of the estate of Harvey Radabaugh, sued the appellant to set aside a conveyance of forty acres of land in Wells county, made by the decedent in his lifetime to appellant, as a fraud upon the creditors of decedent existing at the time of such conveyance, and subject the same to sale to make assets to pay said creditors.
Issue, trial by the court, special finding, and conclusions of law and judgment thereon for the appellee.
The errors assigned are such as call in question the action of the trial court in overruling a demurrer to the complaint and sustaining a demurrer to the second paragraph of answer, overruling motions for a venire de novo and for a new trial, and the conclusions of law.
The first objection pointed out to the complaint is that it does not show any authority in the plaintiff, as administrator, to sue. This objection is unavailable because the only ground of objection stated in the demurrer was that the complaint did not state facts sufficient to constitute a cause of action.
The second ground for which a demurrer is authorized by the statute is that "the plaintiff has no legal capacity to sue." R. S. 1881, section 339.
No such ground was taken in the demurrer. A demurrer for want of facts sufficient to constitute a cause of action does not raise the question of the legal capacity of the plaintiff to sue. Story v. O'Dea, 23 Ind. 326; Musselman v. Kent, 33 Ind. 452; Clough v. Thomas, 53 Ind. 24; Leedy v. Nash, 67 Ind. 311.
The only other objection to the complaint is that it fails to state what debts had been filed and allowed, or that any of them were valid claims against the estate. The complaint states that the claims filed and allowed against the estate amounted to $ 550.27, and the claims filed and pending against said estate amounted to $ 250, and that the personal estate only amounted to $ 14.10.
The complaint was sufficient. The first paragraph of appellant's answer was the general denial; the second stated that decedent owed no debts at the time of his death.
There was no available error in sustaining the demurrer, because the paragraph amounted only to a general denial, and one general denial still remaining in the record was as potent in the protection of appellant's rights as two or a half dozen would have been.
It is next contended by appellant that the court erred in its conclusions of law upon the special finding. Appellee insists that such alleged error is unavailable because there was no exception to the conclusions of law.
The cause was tried at the December term of the court below, for 1889, and was taken under advisement until the next term. At the February term, 1890, the court, at the request of appellant, made at the latter term, returned a special finding of the facts, and stated its conclusions of law arising thereon, and filed the same on the 26th judicial day of the said February term of said court, for 1890, the same being the 25th day of March, 1890. No exceptions to the conclusions of law were taken at that time. At that term appellant, four days later, filed a paper, in which he excepts to each of the conclusions of law. The statute requires that "The party objecting to the decision must except at the time the decision is made." R. S. 1881, section 626.
It also provides that "Where the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing it to be noted at the end of the decision that he excepts." R. S. 1881, section 628.
The same question here involved came before this court in Hull v. Louth, Guar., 109 Ind. 315, 10 N.E. 270, wherein this court, at page 333, said: Citing Smith v. McKean, Admr., 99 Ind. 101; Kolle v. Foltz, 74 Ind. 54; Johnson v. Bell, Admr., 10 Ind. 363; Dickson v. Rose, 87 Ind. 103; Coan v. Grimes, 63 Ind. 21; Dickson v. Lambert, 98 Ind. 487; Cincinnati, etc., R. R. Co. v. Leviston, 97 Ind. 488.
The only difference between the case quoted from and the case at bar is that, in that case, the exception was not taken to the conclusions of law until three days after the conclusions of law were filed, and, here, it was four days. If appellant could take such exception four days after the conclusions were filed, he could do so in forty days thereafter. Such a ruling would practically nullify the statute quoted above. To the same effect are Matsinger v. Fort, 118 Ind. 107, 20 N.E. 653; Midland R. W. Co. v. Dickason, 130 Ind. 164, 29 N.E. 775, and Brown v. Ohio, etc., R. W. Co., 135 Ind. 587.
But the appellant contends that the bill of exceptions shows that his exceptions were taken at the very time the conclusions of law were filed. It does so state. But it is contended that such statement has not become a legitimate part of the record for the following reasons: As already stated, the trial took place at the December term, 1889; the cause was taken under advisement until the next term, which was the February term, 1890. At that term the special finding and conclusions of law were filed, and appellant filed motions to modify the special finding and conclusions of law, some of which were taken under advisement until the next term, which was the May term, 1890. At the latter term, appellant's motions to modify were overruled, whereupon he filed motions for judgment in his favor on the special finding, for a new trial, and for a venire de novo, all of which motions were overruled, and he excepted. The exception to the conclusions of law was filed at the former term, and no time was either asked or given at either the prior December term or the prior February term, in which to file a bill of exceptions. Though, after the judgment was rendered, at the May term, the court granted appellant twenty days' time in which to file bills of exceptions.
The statute, as above quoted, after requiring the exception to be taken at the time the decision is made, provides that "Time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the court." R. S. 1881, section 626, supra.
As before observed, no leave of any kind was given at the February term, whereat the decision objected to took place, to file a bill of exceptions at any subsequent time as to said decision, namely, the conclusions of law.
A motion for a new trial, under the proviso in section 626, supra, carries forward to the term at which the motion for a new trial is overruled, only such exceptions as are properly assignable as a cause for a new trial. Bement v. May, 135 Ind. 664, 34 N.E. 327.
Exceptions to the conclusions of law, or error in the conclusions of law arising upon a special finding, are not grounds for a motion for a new trial. Smith v. Davidson, 45 Ind. 396; Peden's Admr. v. King, 30 Ind. 181; City of Logansport v. Wright, 25 Ind. 512; Roberts v. Smith, 34 Ind. 550.
Therefore, though the motion for a new trial was not filed and acted on until the May term, when time was given to file a bill of exceptions, it was too late at that term to file a bill of exceptions bringing into the record an exception to the conclusions of law, filed at the preceding February term.
We, therefore, find it quite unnecessary to examine and decide the numerous questions agitated in briefs of counsel touching the validity of the proceedings instituted in the court below, by which, on the motion of appellee, the bill of exceptions was amended since this appeal, which amendment comes here in response to a writ of certiorari, whereby the statement in the bill that the exception to the conclusions of law was taken at the time was stricken out, and instead thereof was inserted the statement that the exception was taken four days thereafter. We, therefore, hold that no question as to the conclusions of law is presented by the record.
The motion to modify the finding of facts is a queer procedure. It proceeds upon the idea that the finding is not in accord with the evidence, asking some of the facts found to be struck out, because not proven by the evidence, and other findings to be added because proven by the evidence. There is no evidence before us, as we shall hereinafter see, to prove to us that the complaint against the facts found is true, if even that were the appropriate remedy. But it has been so often decided by this court that the proper remedy for relief against a special finding or verdict as being unsupported by, or contrary to, the evidence, is a motion for new trial, that a citation of the cases is scarcely necessary. Deeter v. Sellers, 102 Ind. 458, 1 N.E. 854; Bartley v. Phillips, 114 Ind. 189, 16...
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