Stewart v. Flynn, 15200.

• Decision Date: 30 March 1936
• Docket Number: No. 15200.,15200.
• Parties: STEWART v. FLYNN.
• Court: Indiana Appellate Court

101 Ind.App. 692

200 N.E. 706

STEWART

v.FLYNN.

No. 15200.

Appellate Court of Indiana, in Banc.

March 30, 1936.

Appeal from Jay Circuit Court; Ethan W. Secrist, Special Judge.

Suit by Peter H. Flynn against Richard P. Stewart. Judgment for plaintiff, and defendant appeals.

Affirmed.

James J. Moran, of Portland, for appellant.

Roscoe D. Wheat, of Portland, for appellee.

WOOD, Judge.

Appellee brought suit against the appellant, individually, and as administrator of the estate of one Eva L. Stewart, deceased, for the recovery of a certain United States bond or its value. The complaint was in two paragraphs, the first was on the theory of replevin, the second was on the theory of conversion. Appellant answered both paragraphs of the complaint with a general denial. Appellee then dismissed his action against appellant as administrator of the estate of Eva L. Stewart, deceased. Trial was had to the court without the intervention of a jury, which upon request found the facts specially and stated its conclusions of law thereon, upon which judgment was rendered in favor of appellee, after the overruling of a motion for a new trial filed by appellant.

From this judgment appellant appeals, assigning as errors for reversal, error of the court in its conclusions of law, and error of the court in overruling appellant's motion for a new trial.

From the special finding of facts, it appears that Eva L. Stewart departed this life, intestate, in Jay county, Ind., on March 18, 1932, leaving no children, nor father or mother surviving her, but leaving her husband, Richard P. Stewart, appellant herein, surviving her as her sole and only heir. She also left surviving her, a brother, Peter H. Flynn, the appellee herein. She left no other brothers or sisters surviving her. Her estate consisted of real estate of the value of $1,255 and personal property of the value of $6,000. The estate was solvent. On the day following the burial of Eva L. Stewart, appellant went to the office of appellee in the city of Portland, Ind., and there handed appellee a package, appellant at the time saying to appellee, “This is what your sister left for you.” Appellee unwrapped the package in the presence of appellant; it contained a lady's leather hand bag in which was a billfold, which billfold contained one United States Registered 4th Liberty Loan $1,000 bond payable to Eva L. Stewart; ten $10 gold pieces; $100 in paper money; a certificate of deposit for $600, payable to Eva L. Stewart and Peter H. Flynn, and some other small coins. At the same time appellant advised appellee to put these papers and money in a bank, where they would be safe. Appellee did thereafter put all these articles in his personal safety deposit box in the First National Bank of Portland, Ind. April 14, 1932, appellant executed and delivered to appellee a deed conveying to appellee certain real estate, the title to which was in the name of Eva L. Stewart at the time of her death, but which real estate was formerly owned by the father of Eva L. Stewart and appellee, the father having died previous to the death of Eva L. Stewart. This real estate was held in trust by her and said conveyance was made without any consideration, but for the purpose of carrying out said trust, and the wishes of Eva L. Stewart. May 25, 1932, upon his application, appellant was appointed administrator of Eva L. Stewart's estate. Thereafter it was agreed between appellant and appellee that he, appellee, should deliver the $1,000 bond to appellant, so that he, appellant, as administrator, could take such steps as would be necessary to convert the bond into cash, whereupon appellant would turn the money received from the bond over to appellee. Pursuant to this agreement, appellee took the $1,000 bond from his safety deposit box and delivered it to appellant, who thereafter got said bond cashed, refused to return the proceeds thereof to appellee, but converted the same to his own use. August 8, 1933, appellee made a demand upon appellant for return of said $1,000 to him, with which demand appellant refused to comply. The appellant received the sum of $1,000 cash for the bond.

Upon these facts the court concluded, “1. That the law is with the plaintiff (appellee) in this cause. 2. That the plaintiff (appellee) recover of the defendant the sum of $1,000 in damages and the costs of this action.”

The only causes for a new trial discussed by appellant are that the finding of the court is not sustained by sufficient evidence, and that the finding of the court is contrary to law. Appellant also asserts that the finding of facts is not sufficient upon which to base the conclusions of law. These questions are so closely related that they will be discussed together.

From an examination of the evidence, it is manifest that it is sufficient to sustain the facts as found by the court, which appellant inferentially admits, “but,” says appellant, “the special finding of facts are evidentiary in their character, meager and feeble and not sufficient to sustain the decision of the court.”

[1][2][3] The special finding of facts is subject to some criticism, but, where the primary facts found lead to but one conclusion, or where such facts are of such a character that they necessitate the inference of an ultimate fact, such ultimate fact will be treated as found by the trial court and sufficient on appeal. In such instances the facts are sufficiently found, though there may be a technical defect of statement in the finding. If the finding of facts contains enough ultimate facts to support the judgment, it will be sufficient, though it may not find all the issuable facts and may contain primary or evidentiary facts. Furthermore, in determining whether conclusions of law are supported by a special finding of facts, it is necessary to bear in mind the rule that “‘a special finding, like a special verdict, a series of instructions, or the like, must be considered as a whole, and it cannot be dissected into fragmentary parts and successfully assailed in detail. One part may be considered in connection with other connected parts, or parts referring to the same transaction, and if, taken as a whole, the finding legitimately supports the judgment, it will be upheld.’ And in determining whether the judgment is thus supported, all intendments and presumptions are in favor of the finding rather than against it.” National Surety Co. v. State (1913) 181 Ind. 54, 103 N.E. 105, 107;Mount v. Board of Com'rs (1907) 168 Ind. 661, 80 N.E. 629, 14 L.R.A.(N.S.) 483;Harris v. Riggs (1916) 63 Ind. App. 201, 112 N. E. 36.

[4] When considered in the light of the...