Stutsman v. Earles

• Court: Indiana Appellate Court
• Writing for the Court: NICHOLS
• Citation: Stutsman v. Earles, 69 Ind.App. 514, 122 N.E. 355 (Ind. App. 1919)
• Decision Date: 06 March 1919
• Docket Number: No. 9780.,9780.
• Parties: STUTSMAN et al. v. EARLES et al.

69 Ind.App. 514

122 N.E. 355

STUTSMAN et al.

v.EARLES et al.

No. 9780.

Appellate Court of Indiana, Division No. 2.

March 6, 1919.

Appeal from Circuit Court, Vermillion County; Josiah T. Walker, Special Judge.

Action by Addison E. Stutsman and others against Mary E. Earles and another, in which defendants filed a cross-complaint. From an adverse judgment, plaintiffs appeal. Appeal dismissed.

L. D. Carey, of Monticello, E. E. Neel, of Newport, and Philip E. Winter, of Oklahoma City, Okl., for appellants.

Hugh H. Conley and W. Bert Conley, both of Newport, for appellees.

NICHOLS, J.

The appellants and the appellee Mary E. Earles are heirs at law of David L. Stutsman, deceased, and, as such heirs, the appellants filed their complaint in the Vermillion circuit court to quiet their title to, and for the partition of, certain real estate, which they claim to own; the complaint being in four paragraphs.

The first and second paragraphs are to quiet title, the second also praying for the cancellation of certain deeds executed by the said David L. Stutsman to the appellees. The third paragraph is for partition of said real estate, and the fourth alleges fraud in the procurement of said deeds from the father to the appellees, and asks that the same be set aside and held for naught as to the interest of the appellants. Appellees filed demurrer to each paragraph of complaint, which was overruled. Appellees then filed answer in three paragraphs; the first being a general denial, and the second and third being, respectively, pleas of res adjudicata. Appellees also filed their cross-complaint in said cause. Appellants filed separate demurrer, with memorandum, to the second and third paragraphs of the appellees' answer which was overruled, to which ruling appellants at the time excepted. Appellants then filed a reply in one paragraph to the second and third paragraphs of appellees' answer, to which reply appellees demurred, and the demurrer was sustained by the court, to which ruling appellants, at the time, excepted. Thereupon the appellants refused to plead further and stood upon the demurrer to the appellees' second and third paragraphs of answer, and upon their reply to said answers, and judgment was rendered against them and in favor of the appellees. The appellees' cross-complaint is to quiet title to the same real estate that is described in the complaint. To this cross-complaint the appellants filed answer in general denial.

The final entry and judgment in this cause is as follows:

“Come again the parties hereto by their counsel, and the plaintiffs file answer in one paragraph to the cross-complaint of the defendants, which answer is in the words and figures as follows, to wit: [Here insert the answer.] Now on defendants' motion the plaintiffs are ruled to reply to the second and third paragraphs of the defendants' answer, and the plaintiffs refusing to reply or to plead further to said paragraphs of answer, and electing to stand upon their demurrer to said paragraphs of answer heretofore overruled by the court, and upon their reply heretofore filed to which demurrer was sustained by the court and upon the court's ruling to the plaintiffs' demurrer to said paragraphs of answer and on the defendants' demurrer to the plaintiffs' reply, judgment is now rendered against the plaintiffs and in favor of the defendants on demurrer. It is therefore considered and adjudged by the court that the plaintiffs take nothing by their action herein.

This cause being at issue on the cross-complaint is submitted to the court for trial and judgment without the intervention of a jury, and the court having heard the evidence and being sufficiently advised in the premises, finds for the defendants on their cross-complaints herein, that they are the owners in fee simple and in possession of the real estate described in their cross-complaint and that their title in and to said real estate should be quieted. It is therefore further considered and adjudged by the court that the defendants are the owners in fee simple of the real estate described in their cross-complaint, the same being in Vermillion county, in the state of Indiana, and described as follows, to wit: (Here follows description.) And that the claim of the plaintiffs and each of them is unfounded and without right, and that the defendants' title thereto be, and the same is, hereby quieted and...