Trook v. Crouch

• Decision Date: 25 January 1923
• Docket Number: No. 11228.,11228.
• Citation: 137 N.E. 773,82 Ind.App. 309
• Parties: TROOK v. CROUCH et al.
• Court: Indiana Appellate Court

82 Ind.App. 309

137 N.E. 773

TROOK

v.CROUCH et al.

No. 11228.^*

Appellate Court of Indiana, Division No. 1.

Jan. 25, 1923.

Appeal from Superior Court, Grant County; Robt. Murray, Judge.

Action by William H. Trook against Richard M. Crouch and others. Judgment for defendants, and plaintiff appeals. Reversed, with instructions to sustain motion for new trial.

See, also, 63 Ind. App. 272, 110 N. E. 1004, 113 N. E. 730.

Wilson D. Lett, of Marion, and Myers, Gates & Ralston, of Indianapolis, for appellant.

Marshall Williams, of Marion, and Wolf & Barnes and C. W. Roll, all of Kokomo, for appellees.

BATMAN, J.

Action by appellant against appellees, based in part on an account, consisting of 203 items, covering a period of almost ten years, and aggregating the sum of $5,640.15. The relief sought, as to said account, is a personal judgment against appellees, Orin T. Trook and Richard M. Crouch, with a decree adjudging the same to be a lien on certain real estate owned by them. The complaint was answered by general denials, and pleas of payment and former adjudication, on which issues were duly joined. The cause was submitted to the court for trial, and, on request, the court made a special finding of facts and stated its conclusions of law thereon, which were followed by a judgment in favor of appellees. Prior to the submission of the cause for trial, appellant filed a motion to have the same consolidated with a cause then pending in the Grant circuit court, which was overruled. After the court had made its special finding of facts and stated its conclusions of law thereon, but before the rendition of judgment, appellant filed a motion for a venire de novo, which was overruled. Appellant thereafter filed a motion for a new trial, which was overruled, and this appeal followed, based on an assignment of errors, which requires a consideration of the questions hereinafter determined.

[1][2] Appellant contends that the court erred in overruling his motion to consolidate this cause, which was pending in the Grant superior court, with a cause pending in the Grant circuit court. It appears to be a general rule that, in the absence of statutory provisions, a consolidation of actions, even where permissible, cannot be demanded as a matter of right, but may be granted or denied, as the court in its discretion may determine, and it's action in that regard will not be ground for reversal, unless such discretion was manifestly abused. 1 C. J. 1123; 1 R. C. L. 360; 1 Watson's Works P. & P. 731; Grant v. Davis (1892) 5 Ind. App. 116, 31 N. E. 587;Butler v. Secrist, 84 Neb. 85, 120 N. W. 1109;Hayward v. Mason, 54 Wash. 653, 104 Pac. 141;Bond v. Nat. Fire Ins. Co., 77 W. Va. 736, 88 S. E. 389;Tracy v. N. Y., etc., R. Co., 82 Conn. 1, 72 Atl. 156;Miles v. Danforth, 37 Ill. 156. There are no statutory provisions in this state for the consolidation of causes, but courts may do so, in proper cases, by virtue of their inherent power. Atkinson v. Disher (1912) 177 Ind. 665, 98 N. E. 807. But we fail to find that such power has ever been invoked in this state for the consolidation of nondependent causes, instituted in different courts by separate plaintiffs, merely because the judgment rendered in each may affect the same res. Vandalia Coal Co. v. Lawson (1908) 43 Ind. App. 226, 87 N. E. 47. But, aside from this, no abuse of discretion is shown, which, on appeal, is of itself a sufficient answer to appellant's contention. There was no error in overruling the motion under consideration.

Appellant also contends that the court erred in overruling his motion for a venire de novo. He appears to base this contention on two grounds, viz.: (1) That the court failed to make a finding as to certain facts essential to his right of recovery, which were clearly established by the evidence. (2) That the finding of facts and conclusions of law are too indefinite and uncertain to authorize the rendition of a judgment thereon.

[3] As to the first ground it suffices to say that, where a finding of facts contains substance enough to support a judgment one way or the other, it will not be objectionable because it does not find on all of the issuable facts. In such case the remedy is by a motion for a new trial, and not by a motion for a venire de novo. Maxwell v. Wright (1902) 160 Ind. 515, 67 N. E. 267;Carnahan v. Shull (1913) 55 Ind. App. 349, 102 N. E. 144;Knight v. Kerfoot (1915) 184 Ind. 31, 110 N. E. 206. A careful examination of the record leads us to conclude that we would not be warranted in holding that appellant was entitled to a contrary ruling on the motion under consideration, based on said second ground. The ruling of the trial court respecting said motion is therefore sustained.

Appellant finally contends that the court erred in overruling his motion for a new trial. He bases this contention chiefly on the ground that the evidence does not sustain the material finding in favor of said appellees, Trook and Crouch, that all the matters in issue in the instant case, not expressly excepted, were fully adjudicated in a prior action in the Grant circuit court, designated therein as cause No. 14059. In support of this contention, appellant asserts that two of the principal issues, tendered by him in his complaint in the instant case, were not involved in said former action, viz. his right to a personal judgment against said appellees on the account in suit, and his right to have the same decreed to be a lien on the real estate in question. Appellees seek to limit the scope of our determination in this regard by asserting that appellant, by his complaint in this action, does not seek a personal judgment against them, but only to have the indebtedness, evidenced by his alleged account, decreed to be a lien on certain real estate. We cannot agree with appellees' contention, as appellant's complaint, when fairly construed in the light of its controlling averments, must be held to be an action in which both elements of relief mentioned above are sought. This being true, we must consider whether the evidence shows, as found in the instant case, that both of said matters were fully adjudicated in said former action.

The record discloses that the pleadings in said former action are in evidence in the instant case; that they consist of a complaint by said Orin H. Trook against appellant and the said Richard M. Crouch, and a cross-complaint by said Crouch against appellant and said Orin H. Trook, both of which were answered by general denials, and also a cross-complaint by appellant against said Trook and Crouch, which was also answered by general denials. The substance of said complaint and cross-complaints is set out in the opinion of this court in said former case, as reported in 63 Ind. App. 272, 110 N. E. 1004, 113 N. E. 730, under the title of Trook v. Trook. The statement there made, although comparatively brief, considering the length of the pleadings, is sufficiently full to relieve us of the necessity of restating the same here. It will be observed that said appellees sought in said former action, by the complaint of the one and the cross-complaint of the other, to establish a trust in their favor in certain real estate which the evidence shows to be the same real estate involved in this action, and to obtain an accounting on the part of appellant as a trustee thereof, whom they alleged held the legal title thereto; and that appellant, by his cross-complaint, sought to have his title to said real estate quieted against said appellees. The record further discloses that much of the evidence introduced in said former action was introduced in the instant case, which included, among other things, the items composing the account in suit, with the exception of one item, found not to be a proper charge against either of said appellees. The record also discloses that after the submission of the evidence in said former action, the court made the following finding, which was entered of record in said cause:

“Come the parties herein by their respective counsel, and the court, having heretofore heard all the evidence and being well advised in the premises, now finds that the plaintiff Orin H. Trook, and the defendant Richard M. Crouch are the owners of the real estate described in the complaint, and that the same is hereby held in trust for them by the defendant William H. Trook, and that they are entitled to immediate possession thereof, together with the rents and profits accrued thereon to said Will H. Trook, less any proper credits against the same to be adjudicated at present term of court.”

This was, in effect, an order against appellant for an accounting as to the rents and profits arising from his trust, but the record does not disclose that he made any accounting in pursuance thereof, or that any evidence was thereafter heard, as to the state of appellant's account as such trustee, or upon any other subject or issue involved in said action, but it does appear that the court thereafter at the same term again made the same finding and order as to an accounting on the part of appellant, and also found, in effect, that appellant held the real estate in question in trust for appellees Trook and Crouch, who are the owners of the same and entitled to the immediate possession thereof; that they are entitled to have and receive of the Flint Elevator Company the sum of $312, more or less, being the full amount in its hands for grain produced on said real estate and sold by appellant; that they are entitled to recover of appellant on account of the sale of a portion of the real estate belonging to his said trust, and on account of rents collected therefrom by him, the sum of $175; and that appellant take nothing by reason of his said cross-complaint. The record further discloses that following this finding, and as a part of the same entry, a judgment was rendered against appellant in favor of said appellees for $175, and that they recover the...