Smith v. Strock
| Decision Date | 05 April 1945 |
| Docket Number | 17352. |
| Citation | 60 N.E.2d 157,115 Ind.App. 518 |
| Parties | SMITH v. STROCK. |
| Court | Indiana Appellate Court |
Appeal from Steuben Circuit Court; William P. Endicott, Special Judge.
Action by Nora Smith, as executrix of the last will of Hannah E Beigh, deceased, against Frank Strock, as executor of the last will of William S. Beigh, deceased, to recover money belonging to plaintiff's decedent allegedly appropriated by defendant's decedent while acting as agent for plaintiff's decedent. Judgment for defendant, and plaintiff appeals.
Judgment affirmed.
Rex S. Emerick, of Kendallville, and Harris W. Hubbard, of Angola, for appellant.
Mountz & Mountz, of Garrett, and Willis K. Batchelet, of Angola for appellee.
This was an action by appellant against appellee to recover moneys belonging to appellant's decedent, Hannah E. Beigh alleged to have been appropriated by her son, William S. Beigh, appellee's decedent, from funds which appellant claims came into the hands of said William S. Beigh during his lifetime and while he was acting as agent for his mother, Hannah E. Beigh. The action was commenced by the filing of a verified claim against the estate of William S. Beigh, which claim was disallowed and transferred to the trial docket for trial. The issues were joined upon appellee's amended claim in four paragraphs and the defense of appellee under the statute without filing any affirmative answer.
The cause was tried to the court without the intervention of a jury and a general finding rendered for appellee and against appellant, upon which finding final judgment was duly rendered and this appeal prosecuted.
Paragraph 1 of appellant's amended claim is based upon the alleged appropriation to his own use by William S. Beigh of the proceeds of certain checks received by Hannah E. Beigh from Veterans' Administration of the U. S. as monthly insurance and compensation payments accruing to her because of the death of a son in the U. S. military service during World War I.
The second paragraph of the amended claim is based upon the alleged conversion by William S. Beigh of $300 claimed to have been received by him in 1938 from the sale of sheep owned by Hannah E. Beigh.
The third paragraph of the amended claim is based upon the alleged conversion in 1934 by William S. Beigh of $260 received from the sale of ewe lambs belonging to Hannah E. Beigh.
The fourth paragraph of the amended claim is based upon an alleged indebtedness of William S. Beigh in the sum of $600, due and owing by him to Hannah E. Beigh as and for rent of sixty-four acres of farm land in Steuben County, Indiana, for the years of 1938, 1939, and 1940, at an agreed rental of $200 per year.
The sole error assigned in this court is the alleged error of the trial court in overruling the appellant's motion for a new trial, which contains three specifications, to wit: (a) That the decision of the court is contrary to law; (b) that the decision of the court is not sustained by sufficient evidence; and (c) that the decision of the court is not sustained by sufficient evidence and is contrary to law.
It is well settled by numerous decisions that an assignment of error to the effect that the decision, or verdict, is not sustained by sufficient evidence presents no question for review upon appeal when the decision, or verdict, is negative and against the party having the burden of proof. McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 51 N.E.2d 474; Scoopmire v. Taflinger et al., 1944, 114 Ind.App. 419, 52 N.E.2d 728; Wilson, Adm'x, v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905; Myers v. Brane, 1944, Ind.App., 57 N.E.2d 594; Warren Co. v. Exodus, 1944, 114 Ind.App. 651, 54 N.E.2d 775; Cleveland, C., C. & St. L. R. Co. v. Starks, Adm'x, 1915, 58 Ind.App. 341, 106 N.E. 646. Therefore, the second specification of the motion for new trial presents no question for our consideration.
In support of her contention that the decision of the trial court is contrary to law the appellant, in her brief, says:
In compliance with appellant's request, we have carefully examined the record in this cause and find that it contains ample evidence to establish the following facts:
Appellant's decedent, Hannah E. Beigh, was an elderly widow who had for a number of years resided alone upon a sixty-four acre farm in Steuben County, Indiana. Her husband died in 1926. There were born to this union four children, viz.: Edward Beigh, who died in 1920 while in the service in the U. S. military forces of World War I; Esther Beigh; Nora Beigh Smith, appellant herein, and William S. Beigh, appellee's decedent. Esther Beigh died in 1931 and, after her death, Hannah E. Beigh lived alone until her death on November 14, 1941. William S. Beigh died as a result of an automobile accident which occurred on November 11, 1940.
During all the times mentioned, Hannah E. Beigh owned a life estate in sixty-four acres of farm land in Salem Township, Steuben County, Indiana, where she lived. Appellee's decedent, William S. Beigh, was the only son the Hannah E. Beigh living at the time of the death of her husband in 1926. At that time, and until about 1937, he resided in the village of Hudson, Steuben County, a distance of about eight miles from the farm and home of his mother. During the period of time above mentioned he owned and operated a gasoline filling station at Hudson, Indiana. The relations existing between William S. Beigh and his mother were always friendly, cordial, and intimate. While he lived at Hudson, he made weekly trips, and sometimes oftener, to his mother's home and took her into town at least once each week to do her shopping and marketing. He looked after her general welfare and comfort.
In 1937 William S. Beigh moved from Hudson to a farm adjoining his mother's place and continued to live there until his death in November, 1940. After moving to the farm, William S Beigh called at his mother's home almost daily. He looked after her farm, made repairs, and assisted his mother in her business affairs. During the years from 1934 to the date of her death in 1941 Hannah E. Beigh received insurance and compensation checks from the U. S. Government because of the death of her son, Edward Beigh, while in the military service, amounting to approximately $5,195.83, and of this total amount William S. Beigh endorsed checks amounting to $2,120.83. The evidence further discloses that Hannah E. Beigh received all of the checks through the U. S. Mail, opened all of the envelopes containing these checks, and personally endorsed each and every check in her own handwriting. The checks were cashed through various sources. Some of them were cashed at the Post Office and are endorsed by Hannah E. Beigh and the various post masters; some of the checks were endorsed by Hannah E. Beigh and the names of various business men and firms with whom Mrs. Beigh traded or had business dealings; some were deposited in her bank account, either in...
To continue reading
Request your trial