Ruffing v. Tilton
| Decision Date | 28 May 1859 |
| Citation | 12 Ind. 227 |
| Parties | Ruffing and Another v. Tilton and Others |
| Court | Indiana Supreme Court |
From the Carroll Circuit Court.
The judgment is affirmed with 3 per cent damages and costs.
J. F Suit and J. M. Cowan, for appellants.
S. A Huff, Z. Blaird, J. M. La Rue, and Sims and Sims, for appellees.
Complaint by Tilton and Malony against Charles and John N. Ruffing, to set aside a conveyance of certain real estate, made by Charles to John N. Ruffing, on the ground that the conveyance was made to defraud the creditors of said Charles, the plaintiffs being such creditors, and having judgment against him. Margaret, formerly wife of Charles, on her petition setting up a divorce from said Charles, and a decree against him for alimony, was made a party plaintiff, asking that the conveyance be set aside and her alimony made out of the premises.
There was a default as to Charles, but John N. appeared and answered. Issues were made up, and the cause tried by a jury, which resulted in a verdict and judgment for the plaintiffs, over a motion for a new trial.
Exception was taken to several rulings of the Court on demurrers, but no error is assigned upon these rulings.
The errors assigned are as follows, viz.:
1. "Judgment was rendered for the appellees when it ought to have been rendered for the appellants.
2. "The Court erred in giving the instructions asked for by the appellees, and in refusing instructions asked for by the appellants.
3. "The Court erred in refusing a new trial for the causes assigned."
The first assignment is too general, and amounts to nothing. Kimball v. Sloss, 7 Ind. 589.--King v. Wilkins, 10 id. 216.
The evidence is not set out, and, therefore, we must presume that the instructions refused were inapplicable to the facts proven, and were therefore refused, if correct in the abstract. Woolley v. The State, 8 Ind. 502.
The instructions given, if not all entirely correct, are so in the main, and some of them are very clearly so. We cannot say that any of them are wrong under any supposable state of facts that might have been shown.
It is well settled that if, under any supposable state of the evidence, the instructions given could have been correct, it will be presumed, the record not showing the contrary, that that state did exist. Ind. Dig., p. 684, § 430. Some of the instructions asked were refused as asked, but given as modified by the Court. In the absence of the testimony, we presume the instructions, as asked, were properly refused.
The last error assigned relates to the ruling of the Court on the motion for a new trial.
The following are the reasons for which a new trial was asked, viz,:
1. "The Court erred in permitting the said Margaret Ruffing to be made a co-plaintiff.
2. "The verdict is contrary to law and the evidence in the case.
3. "The Court erred in refusing to give the instructions asked for by the defendant, as asked for, which were refused.
4. "The Court erred in giving the instructions asked for by plaintiff.
5. "The verdict of the jury is contrary to the instructions of the Court and the evidence in the cause.
6. "The Court erred in permitting an argument, by the counsel for the plaintiff to the Court, as to the form of the verdict, in presence of the jury, after they had been returned into Court and polled. and some of them had dissented from the verdict.
7. "Because the jury did not find whether the deed of conveyance from Charles Ruffing to John N. Ruffing, for the premises referred to in the complaint, was a bona fide deed, executed for a valuable and fair consideration."
The first reason for a new trial, we think, is insufficient, even on the supposition that a motion for a new trial was the remedy for the supposed error. Although the claims of the plaintiffs, Tilton and Malony, and Margaret Ruffing, were several and not joint, yet they were judgment creditors, and had a right to unite in a suit to set aside the fraudulent conveyance, and subject the property to the payment of their judgments. Kipper v. Glancey, 2 Blackf. 356. At least, the defendants had no right to complain of her being made a party plaintiff. The other plaintiffs, if any one, were the persons injured by her coming in as a party, and they do not complain.
The second reason we will consider in connection with the seventh.
What we have said already, disposes of the third and fourth. The evidence not being before us, we have no means of determining whether there is anything in the fifth; but we must presume that the verdict is in accordance with the instructions of the Court, and the evidence in the cause.
The sixth reason for a new trial grows out of the following facts, as appears by the record. The jury returned into Court with a verdict, and upon being polled, some of them dissented from it. This verdict was not received. Thereupon, the Court permitted counsel for the plaintiffs to address the Court in the presence of the jury, as to the form of the verdict, to which exception was taken. Thereupon, the jury, after receiving additional instructions as to the form of their verdict, retired, and afterwards returned into Court with the verdict contained in the record, and, upon being polled, all assented thereto.
We are unable to perceive any error in permitting a discussion before the Court in the presence of the jury, as to the proper form of their verdict. Such discussions, certainly, would not necessarily prejudice the substantial rights of the parties, and if any injury has resulted in this case, it is not shown. This point is abandoned by counsel, as it is not discussed by them, in their brief.
There was no general verdict found by the jury, but they returned the following special verdict in response to interrogatories put to them viz.:
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