Scott v. Kell
| Decision Date | 11 October 1956 |
| Docket Number | No. 18750,18750 |
| Citation | 137 N.E.2d 449,127 Ind.App. 472 |
| Parties | Robert O. SCOTT, Appellant, v. Edith H. KELL (formerly Scott), Appellee. |
| Court | Indiana Appellate Court |
Waldo C. Ging, Greenfield, John H. Baldwin, Indianapolis, for appellant.
Addison M. Dowling, Indianapolis, Melville E. Watson, Greenfield, for appellee.
The appellant's petition for a rehearing charges us with misconstruing the issues raised by his motion for a continuance. While we do not concede this to be true it is, nevertheless, of no consequence. As far as the record discloses such motion was never presented to or ruled upon by the court. The acts of a court of record are known by its records alone, State ex rel. Davis v. Achor, 1947, 225 Ind. 319, 75 N.E.2d 154, and the fact that a verified pleading in the present case states that the court denied the appellant's application for a continuance does not establish the fact. Kellogg v. Sutherland, 1871, 38 Ind. 154.
In reference to the appellant's contention that the court's order concerning the custody of the child David is erroneous as being outside the issues, we adhere to our initial holding. Furthermore the action of the court in modifying its original order in reference to David's custody was all in the appellant's favor and furnishes nothing of which he can complain.
The appellant next contends that we erred in following Dubois v. Johnson, 1884, 96 Ind. 6, to the effect that the appellee's fitness to have the custody of her two daughters was res adjudicata up to the time of the divorce decree and that evidence of her conduct prior to that time was inadmissible. This contention is based on the fact that the divorce decree awards the custody of the two girls to the appellant and not the appellee. The fitness of the mother to have custody of her children was an issue in the divorce proceedings. She was given the custody of one of them and there is nothing in the evidence which would warrant the court in concluding that she was a fit person to have the custody of the one but unfit as to the others. We are forced to conclude that the court was prompted to divide custody for reasons other than the fitness of the respective parents and that the fitness of each was fully and finally adjudicated up to the time of the divorce.
It is next contended that we failed to decide alleged error in rejecting the testimony of three witnesses for the appellant and excluding his exhibits 9 and 10. All such...
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K. B. v. S. B.
...adequacy of special findings of fact, we will consider them as a whole, Scott v. Kell, (1956) 127 Ind.App. 472, 134 N.E.2d 828, reh. den. 137 N.E.2d 449, trans. den. 141 N.E.2d 106 (1957), and will liberally construe them in favor of the judgment. Miles, K.B.'s contention that the findings ......
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Wedmore v. Jordan Motors, Inc.
...are to be liberally construed in support of the judgment. Scott v. Kell (1956), 127 Ind.App. 472, 134 N.E.2d 828 reh. denied, 127 Ind.App. 472, 137 N.E.2d 449, trans. denied, 127 Ind.App. 472, 141 N.E.2d 106. It is true where special findings are entered, we may not affirm the trial court's......
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Guy v. Guy
...64 N.E. 86; McDonald v. Short, Superintendent, 1921, 190 Ind. 338, 130 N.E. 536; Scott v. Kell, 1956, 127 Ind.App. 472, 134 N.E.2d 828; 137 N.E.2d 449, 141 N.E.2d 106; Maxwell v. Maxwell, 1956, 127 Ind.App. 266, 138 N.E.2d 921, 140 N.E.2d The King county superior court had the child and bot......
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Ecker v. Ecker
...this cause. Louisville, New Albany and Chicago Railway Company v. Miller (1894), 141 Ind. 533, 555, 37 N.E. 343; Scott v. Kell (1956), 127 Ind.App. 472, 484, 137 N.E.2d 449, 450, 141 N.E.2d 106 (transfer No reversible error having been shown, the judgment of the trial court is affirmed. Aff......