Voltz v. Newbert

• Decision Date: 02 December 1861
• Citation: 17 Ind. 187
• Parties: Voltz v. Newbert and Another
• Court: Indiana Supreme Court

17 Ind. 187

Voltz v. Newbert and Another

Supreme Court of Indiana

December 2, 1861

APPEAL from the Ripley Circuit Court.

The judgment is affirmed, with costs.

William S. Holman, for the appellant.

OPINION

Davison J.

The appellees, who were the plaintiffs, brought this action against Voltz, alleging in their complaint that they were the owners in fee simple, and entitled to the possession of certain land in Ripley county, described as follows:

"Two acres and three eighths of an acre, off the east side of the southeast quarter of section 27, in township 9, and range 12, commencing at the northeast corner of said quarter section, as established by original survey under the authority of the United States, and running from thence along the east line of said quarter, as marked and established by the original survey under authority of the United States, to the southeast corner of said quarter; from thence north 160 rods, along the line run by Pattison, to a stake on the north line of said quarter, and thence four rods to the original corner of said quarter section, as established as aforesaid, containing, by actual survey, two and three-eighths acres of land, which is in the form of an acute angle, and that the defendant holds the land unlawfully and without right," &c.

The defendant answered thus: "that he is not the owner, nor is he in possession, of any part of the southeast quarter of section 27, in township 9, and range 12. He therefore denies each and every allegation in the complaint, and especially he denies that he unlawfully and without right, holds the possession of any lands belonging to the plaintiff," &c. To this the plaintiff replied, that although it is true that the defendant is not the owner of the land described, &c., still he is in the wrongful possession thereof, and refuses to deliver possession of the same to the plaintiff; and the plaintiff again charges that he is the rightful owner in fee simple of said land, of which the possession is unlawfully withheld as aforesaid, &c.

Upon the issues thus formed, the cause was tried before said Court, at the February term, 1858. This trial resulted in a verdict for the plaintiffs; but a new trial having been granted, the cause was again tried at the February term, 1859, and the jury failing to agree the issues were again, at the August term, 1859, submitted to a jury, who found for the plaintiffs. The defendant thereupon moved for a new trial, on four grounds: 1. The verdict is unsustained by the evidence. 2. The Court erred in its instructions to the jury 3. The Court refused to instruct the jury to find specially on particular questions of fact, as requested by the defendant. 4. The Court erroneously rejected evidence introduced by the defendant, and refused to admit evidence offered by him. This motion the Court overruled, and the defendant excepted.

The plaintiffs, as appears by the evidence, were seized in fee of the east half of the southeast quarter of section 27, in township 9 north, of range 12 east. In this half quarter they allege the land described in the complaint to be included. It also appears that the defendant is the owner in fee simple of the southwest quarter of section 26, in the same township and range, and that a county surveyor named Pattison, had run a line between sections 26 and 27, called "the Pattison line." Between this and another line, alleged by the plaintiffs to be the original line established by survey under the authority of the United States, called "the old line," the land in controversy is situated; the plaintiffs claiming that section 27 is bounded by "the old line," and the defendant alleging "the Pattison line" to be the true line between the sections. Hence it became important to ascertain, by proof, the line which had been legally established between them; but the Court, while the trial was in progress, having intimated that the issues did not raise any question of boundary, the defendant thereupon filed an affidavit alleging, "inter alia," that that question was intended to be raised by the pleadings, and that the parties, and the Court in former trials of the cause, had proceeded on the idea that the question as to what was the true line between sections 26 and 27 was the only matter in dispute, and was fairly in issue. Upon this affidavit, the defendant moved "to reform the issue, by compelling the plaintiffs to amend their complaint as to the description of the land in contest; and also by allowing the defendant to amend his answer. The Court overruled the motion, and the defendant excepted.

As this decision does not appear to have been presented to the Court on the motion for a new trial, it can not be assigned for error. 2 R. S., § 352, p. 117; 12 Ind. 675; 14 id. 486; 15 id. 8. But aside from this objection, we are not inclined to hold the action of the Court erroneous. The cause being on its third trial, the granting of leave to amend the pleadings, while it was in progress, was evidently a matter within the sound discretion of the Court. 2 R. S § 99, p. 48. And, in this instance, there seems to be nothing in the record leading to the conclusion that that discretion has been improperly exercised. The record contains a bill of exceptions, which says that the plaintiffs offered no evidence touching the question of boundary, until the Court, over their objection, had admitted the evidence of one Pattison, who testified on that subject on behalf of the defendant; and that before the plaintiffs had concluded their testimony, the Court reconsidered its decision and decided that such evidence was...