Spanier v. Spanier

• Decision Date: 01 February 1951
• Docket Number: No. 18084,18084
• Citation: 96 N.E.2d 346,120 Ind. App. 700
• Parties: SPANIER v. SPANIER.
• Court: Indiana Appellate Court

Page 346

96 N.E.2d 346

120 Ind.App. 700

SPANIER v.SPANIER.

No. 18084.

Appellate Court of Indiana, in Banc.

Feb. 1, 1951.

Earl W. Johnson, Hammond, for appellant.

Straley Thorpe, Hammond, for appellee.

MARTIN, Judge.

Appellant brought this action against appellee for partition, alleging that the parties are tenants in common of certain real estate.From an adverse judgment appellant prosecutes this appeal, claiming error by the court in overruling his motion for a new trial.

At the outset we are met by appellee's contention that no question is presented because the grounds of the motion are such as may only be presented by independent assignments of error.However this may have been formerly, appellee's contention is without merit by reason of Rule 2-6.This rule now provides: 'If, in the trial court, a motion for a new trial is filed, each error relied upon, however and whenever arising up to the time of the filing of said motion, may be separately specified therein as a ground therefor, and an assignment of error to the effect that the trial court erred in overruling said motion shall be sufficient to raise said asserted error on appeal.'

Appellee defaulted.The cause was submitted and evidence heard.The court found that the parties were each entitled to an undivided one-half of the real estate.Commissioners were appointed, who reported that the premises cannot be divided without damage to the owners.The court then found the property to be indivisible and appointed a commissioner to sell the same at private sale.

Thereafter, apparently at a later term of court, appellee appeared and filed her verified petition to set aside the findings and proceedings.Appellant's demurrer to this petition was overruled, and this ruling is challenged.Appellant says the petition or application is required by the statute, § 2-1068, Burns'1946 Repl., to be by complaint filed and notice issued as an original actions.'However, this court has held that where an application to set aside a judgment is required to be by independent action, it will be so treated notwithstanding it is entitled as part of the original action and designated as a motion.'Gilmer v. Hurst, 1946, 117 Ind.App. 102, 69 N.E.2d 608, 609, citingVail v. Department of Financial Institutions, 1938, 106 Ind.App. 39, 17 N.E.2d 854.When appellant filed his demurrer to the petition he thereby waived the failure of process.Gilmer v. Hurst, supra.

Appellant asserts that the court erred in setting aside the default judgment without first hearing evidence.We find nothing in appellant's brief which indicates that no evidence was heard, and therefore presume that the court acted regularly.

After various pleadings were filed, the cause was submitted to trial on appellant's complaint.At the conclusion of appellant's evidence appellee filed what she designates as a demurrer to the evidence, asking that the court find for the appellee.The court made an entry that the demurrer was sustained, found for appellee and entered judgment that appellant take nothing by his complaint; that appellee recover her costs herein.This action is challenged as error.

While the document is designated a demurrer to the evidence it is obviously not that.It does not set out appellant's evidence.Rather it is a motion to find for appellee, and must be so treated.

This motion presents the question as to whether or not the evidence introduced on behalf of appellant, assuming it to be true, and considering as provided all facts which the evidence proves, or by legitimate inference tends to prove, establishes the appellant's case as laid.Abernathy v. McCoy, 19...