Royse v. Bourne
| Decision Date | 06 October 1897 |
| Docket Number | 18,132 |
| Citation | 47 N.E. 827,149 Ind. 187 |
| Parties | Royse et al. v. Bourne et al |
| Court | Indiana Supreme Court |
Rehearing Denied Dec. 17, 1897.
From the Washington Circuit Court.
Affirmed.
J. A Zaring, M. B. Hottel and F. M. Hostetler, for appellants.
D. W Alspaugh, J. C. Lawler and Harvey Morris, for appellees.
The appellees, other than Durnil, as judgment creditors of Gabriel T. Royse, instituted this action to set aside certain alleged fraudulent mortgages executed by said Royse to his co-appellants, the latter being his wife, mother, sister, and brother. Appellee Durnil is a bona fide mortgage lien holder upon the lands of Gabriel T. Royse, and his said lien is senior to the mortgages which appellants claim to hold upon the real estate in question. Durnil was made a party defendant in this action, and at the same term of court he commenced proceedings against appellants to foreclose his mortgage, and on motion his suit was consolidated with this action, and he became a cross-complainant therein. Upon the issues being joined between the parties on their respective pleadings, both actions were tried as one cause, and, upon request, the court made a special finding of the facts and stated its conclusions of law thereon. In paragraph three of the special finding, facts are found by the court which entitled appellee Durnil to a judgment upon his notes as against Gabriel T. Royse, and a foreclosure of his mortgage against all of the defendants to his action.
The court's several conclusions of law were numbered one, two and three. Number one, under the facts found, awarded a judgment in favor of appellee, Durnil, upon his notes and mortgage. Number two declared the mortgages executed by Gabriel T. Royse on February 23, 1895, to Nancy and William B. Royse to be fraudulent, and that the same should be set aside, and the mortgaged premises subjected to sale in payment of the claims due to the plaintiffs; that the mortgage held by the appellant, Mrs. Jackson, to the amount of $ 312.00, was fraudulent, and to that amount the same should be set aside, but the remainder thereof, to wit, $ 808.00, was declared to be valid and held to be a senior lien over the judgment of plaintiffs. The third conclusion stated the manner in which the proceeds arising from the sale of the mortgaged realty should be applied. At the close of these conclusions the appellants reserved their exceptions as follows: "To which special findings of the facts and the conclusions of law stated thereon the defendants, and each of them, at the time except." Judgment was rendered in favor of appellees in accordance with the facts and conclusions of law.
Appellants in their assignment of errors have specified twenty-two rulings of the trial court which they allege are errors, but a part only of these are in any way urged or considered by their counsel. Appellants filed written motions, and in each of these they demanded that the court "render judgment in their favor upon the special findings and conclusions of law herein." These motions were overruled, and appellants now insist that by these rulings the court erred, for the reason that the facts embraced in the special finding were not sufficient to entitle appellees to a judgment; hence, the judgment should have been in favor of appellants, or, at least, in favor of some of the latter, of which particular mention is made in their brief.
The decision of the court in denying the motion or motions in controversy was right, at least for two reasons: First. The motion was so framed as to couple the facts as found and the conclusions of law thereon as stated by the court together and a demand was made therein for judgment upon both the facts and conclusions. Second. The motion did not proceed upon the theory that the moving party was entitled to a judgment upon the facts, but upon the conclusions of law and the facts taken together. The court's conclusions were, in the main, adverse to all of the appellants, and afforded no foundation for the judgment which they demanded. If appellants believed they were entitled to move for judgment upon the special findings, they ought to have proceeded upon that theory, and not have combined the facts and conclusions together in their motion, and then demand judgment upon both. The validity of conclusions of law based upon a special finding, cannot be reached by a motion for a judgment, but is tested by an exception. This is the recognized practice. See Elliott's App. Proced., sections 757, 793, and cases there cited. To say the least, it is a questionable procedure to move for a judgment upon a special finding, which is confined to the facts within the issues, after the court has stated its conclusions thereon adversely to the moving party. See Elliott's App. Proced., section 767. Considering the manner in which the facts were stated in the finding upon the issues involved, the motion may also be said to have been too broad and general, as it demanded a judgment upon all the findings. The facts embraced in the third paragraph of the finding upon the notes and mortgage of appellee, Durnil, were clearly distinct, and there is no claim, nor can there reasonably be, that appellants, or any of them, were entitled to a judgment in their favor on these facts. However, without regard to this feature, the motion was addressed to the finding as an entirety, and specified no particular facts upon which a judgment was demanded. As the findings, taken as a whole, upon all the issues, did not warrant a judgment thereon in favor of appellants, or either of them, the motion, for...
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