Tobin v. McClellan

• Decision Date: 28 October 1947
• Docket Number: 28280.
• Citation: 75 N.E.2d 149,225 Ind. 335
• Parties: TOBIN et al. v. McCLELLAN.
• Court: Indiana Supreme Court

75 N.E.2d 149

225 Ind. 335

TOBIN et al. v. McCLELLAN.

No. 28280.

Supreme Court of Indiana

October 28, 1947

Petition denied.

For former opinion, see 73 N.E.2d 679.

Appeal from Jay Circuit Court; Gustave H Hoelscher, Special judge.

Sol. H. Esarey and Andrew Jacobs, both of Indianapolis, and J Gordon Meeker, of Portland, for appellants.

Leonidas A. Guthrie, of Muncie, William A. McClellan, of Greenfield Jacob Lennington, of Muncie, and Roscoe D. Wheat, of Portland, for appellee.

STARR Judge.

We were in error when we stated in the original opinion that the record did not disclose that Rose Tobin was a witness or present at the trial of the case of McClellan v. Beatty. We were led into this error due to the indefinite statement of the evidence in appellant's brief. We have examined the record and do find that the appellant was present and did testify in the said cause of McClellan v. Tobin. We do not regard this misstatement as material.

The record discloses that in the case of McClellan v. Beatty the appellant herein petitioned to be made a party to that action which petition was denied and from which no appeal was ever taken. Under these circumstances Rose Tobin could not possibly be considered as bound by the judgment rendered in that cause.

The appellant insists that it appears from the record that the damages that were awarded were excessive and that we failed to pass upon this question in our original opinion. We did not decide this question for the reason that the same was not briefed by the appellant. Appellant's brief under propositions, points and authorities contained no proposition concisely stating the basis or reason why said damages were excessive nor in appellant's argument is there anything mentioned as to the excessiveness of the damages awarded. We have, however, since the petition for rehearing was filed, and due to appellant's insistance, examined the record as to this question. From this examination we have concluded that there was sufficient evidence to warrant the trial court in making this award. Appellee produced evidence as to the rental value of the involved premises, that appellant was in possession at the time appellee acquired the property, and that she has never surrendered possession to him. It also appears that after the suit was stated appellant withheld possession by giving a bond for retention of the possession pending the cause as provided by § 3-1306, Burns' 1946 Replacement.

Appellant in her petition for rehearing contends that our original opinion shows that the judgment rendered in the case of McClellan v. Beatty, which case is fully discussed in our opinion, was a judgment in rem and therefore was binding on strangers as well as parties and privies thereto. She also advances the notion that the opinion shows that the judgment comes under a well recognized exception to the rule that judgments are binding only...