Vanderkooi v. Echelbarger, 30947

• Decision Date: 04 April 1968
• Docket Number: No. 30947,30947
• Citation: 250 Ind. 175,235 N.E.2d 165
• Parties: Lillian Cramer VANDERKOOL, Appellant, v. Janet ECHELBARGER, Appellee.
• Court: Indiana Supreme Court

Page 165

235 N.E.2d 165

250 Ind. 175

Lillian Cramer VANDERKOOL, Appellant, v. Janet ECHELBARGER, Appellee.

No. 30947.

Supreme Court of Indiana.

April 4, 1968.

Tague & Smith, Brookville, Greeley Gay, Versailles, for appellant.

Alan H. Lobley, Ice, Miller, Donadio & Ryan, Indianapolis, Himelick & Himelick, Connersville, for appellee.

ARTERBURN, Judge.

This is an appeal from a judgment holding the appellant in civil contempt. It grew out of a controversy among the heirs over property involved in the estate of Ross M. Cramer, deceased. Judgment was entered on July 15, 1965 in the Fayette Circuit Court in the probate matter, holding that Janet Echelbarger was entitled to all the real and personal property of said decedent, and that it was impressed with a trust for the benefit of said Janet Echelbarger.

The court thereupon appointed John H. Himelick trustee, to collect the property and money of said estate. The information in the contempt proceedings recites that following the appointment of the trustee, Lillian Cramer, the appellant herein, contemptuously defied the order and judgment of the court and wilfully refused to deliver any of the property; that the said trustee demanded the property and asked said appellant what she was doing at the home of said decedent, and she said she was removing all the personal property from said home and farm of said decedent and refused to turn the property over to said trustee. The court, after hearing evidence, found the appellant guilty of contempt and ordered:

'It appearing to the Court that the judgment on contempt heretofore entered, and on which motion for new trial was denied on January 7, 1966, inadvertently contained transposed sentences and other incorrections, the Court now, on its own motion, corrects and amends said judgment as of January 7, 1966, as follows:

'The Court having heard evidence and argument of counsel and then having taken the matter under advisement, and now being fully advised, finds that the defendant, Lillian Cramer Vanderkoi, be guilty of civil contempt of this Court as charged.

'It is further ordered that said defendant may purge herself of such contempt by returning to the petitioner, not later than November 30, 1965, all personal property owned and held by Ross M. Cramer at the time of his death, which said defendant has removed from the Cramer farm, including, but not limited to, the following items: TV antenna, lumber, 10 panels, extension ladders, pitch forks, power mower, chicken feeders, safe, tools, family Bible, electric power saw, drills, small hay troughs and oil barrels.

'It is further considered and adjudged by the Court that said defendant be fined the sum of Fifty ($50.00) Dollars for the benefit of the plaintiff, and that she be imprisoned in the County Jail of Fayette County for thirty (30) days upon failure to comply with this injunction; or upon said defendant purging herself of such contempt by returning to the petitioner not later than the time fixed herein all said personal property, that said fine and sentence be suspended.'

The only issues before us arise as a result of the overruling of the motion for a new trial which specified that the finding of the court is not sustained by sufficient evidence and is contrary to law. Appellant attempts to raise an issue with reference to a nunc pro tunc entry made by the court correcting its judgment of contempt, following the filing of the motion for a new trial. However, the appellant does not set up such claimed error as a specification in the assignment of errors, which would have been the proper method to raise such issue for consideration on appeal, since the complained of act occurred subsequent to the filing of the motion for a new trial. (Supreme Court Rule 2--6).

This leaves us with the consideration, therefore, of error assigned under the motion for a new trial. Appellant in her brief under 'The finding is not sustained by sufficient evidence' first urges that the order directing the...