Walker v. Hill

• Decision Date: 14 June 1887
• Citation: 111 Ind. 223,12 N.E. 387
• Parties: Walker and another v. Hill and others.
• Court: Indiana Supreme Court

111 Ind. 223

12 N.E. 387

Walker and another

v.Hill and others.

Supreme Court of Indiana.

June 14, 1887.

Appeal from circuit court, Jennings county.

Thomas T. Walker and Dan Waugh, for appellants. T. C. Batchelor, for appellees.

Howk, J.

This was a suit by the appellants, Thomas T. Walker and Eleanor Baxter, as plaintiffs, against the appellees, Joanna, Mary, Carrie, and Emma Hill, as defendants, in a complaint of three paragraphs. The first paragraph was a complaint in the ordinary form, to recover the possession of certain described real estate in Jennings county; and the second and third paragraphs were each a complaint to quiet the appellants' title to the same real estate as against the appellees. The cause was put at issue, and tried by the court, and, at the appellants' request, the court made a special finding of the facts, and stated its conclusions of law thereon, in favor of the appellees, the defendants below. Over the appellants' exceptions to the conclusions of law, the court rendered judgment against them for appellees' costs.

The appellees have filed a written motion to dismiss this appeal upon the ground that the transcript of the record is not certified by the clerk below in conformity with the requirements of section 462, Rev. St. 1881. The objection to the certificate is that the clerk certifies the transcript to be a “true and correct” copy, instead of “true and complete,” in the language of the statute. In Anderson v. Ackerman, 88 Ind. 481, where the same objection was made to a certified transcript of a judgment offered in evidence, it was held that the words “true and complete,” as used in the statute, cannot be regarded as technical; and the words “true and correct,” as used in the clerk's certificate, are equivalent in meaning to the statutory words. Besides, this appeal was submitted, by the agreement of the parties, upon the transcript as now certified, without any objection then made to the certificate; and nearly five months elapsed after such submission before the appellees filed their motion to dismiss the appeal on account of the supposed defects in the clerk's certificate. The motion came too late. Such a purely technical motion must be made, if made at all, on the first appearance of the moving party in this court. Otherwise the objection will be regarded as waived. People's Sav. Bank v. Finney, 63 Ind. 460;Field v. Burton, 71 Ind. 380;Easter v. Severin, 78 Ind. 540;Martin v. Orr, 96 Ind. 491.

Upon the record of this cause, appellants, Thomas T. Walker and Eleanor Baxter, have jointly assigned the following errors, namely: (1) The court erred in overruling appellant Walker's separate demurrer to the second, third, fourth, and sixth paragraphs of appellees' joint answer. (2) The court erred in overruling appellant Baxter's separate demurrer to the second, third, fourth, and sixth paragraphs of appellee's joint answer. (3) The court erred in overruling appellant Walker's separate demurrer to the third paragraph of appellee Joanna Hill's separate answer. (4) The court erred in overruling appellant Baxter's separate demurrer to the third paragraph of appellee Joanna Hill's separate answer. (5) The court erred in sustaining appellee Joanna Hill's separate demurrer to the second paragraph of appellant Walker's reply to the second and sixth paragraphs of appellees' joint answer. (6) The court erred in sustaining Joanna Hill's separate demurrer to Walker's second reply to the third paragraph of Joanna Hill's separate answer. (7) The court erred in sustaining Joanna Hill's separate demurrer to Baxter's second reply to the third paragraph of Joanna Hill's separate answer. (8) The court erred in sustaining Joanna Hill's separate demurrer to Baxter's second reply to the second, third, and sixth paragraphs of appellees' joint answer. (9) The court erred in sustaining appellees' joint demurrer to Walker's second reply to the second and sixth paragraphs of appellees' joint answer. (10) The court erred in sustaining appellees' joint demurrer to Baxter's second reply to the second, third, and sixth paragraphs of appellees' joint answer. (11) The court erred in sustaining Joanna Hill's separate demurrer to appellants' joint reply to the fourth paragraph of appellees' joint answer. (12) The court erred in sustaining appellees' joint demurrer to appellants' joint reply to the fourth paragraph of appellees' joint answer. (13) The court erred in its conclusions of law upon its special finding of facts.

The point is made by the appellees' counsel, and, under our decisions, it is well made, that the first 10 errors jointly assigned as above by the appellants herein, are not well assigned, and do not, nor does either of them, present any question for our decision. In this court the assignment of errors constitutes the complaint of the appellants, and, like a complaint in a trial court, it must be good as to all who join therein, or it will not be good as to any of them. Where two or more appellants join in one assignment of errors, if they jointly complain, in any specification or paragraph of such assignment, of a ruling against one of them only as error, such specification or paragraph of error cannot be sustained as to any one, because it is not well assigned by all who have joined in such assignment. Hinkle v. Shelley, 100 Ind. 88; Tucker v. Conrad, 103 Ind. 349, 2 N. E. Rep. 803; Hochstedler v. Hochstedler, 108 Ind. 506, 9 N. E. Rep. 467. This conclusion disposes of the first 10 errors complained of here by the appellants, and we pass to the consideration of the eleventh alleged error, namely, the sustaining of Joanna Hill's separate demurrer to appellants' joint reply to the fourth paragraph of appellees' joint answer.

The fourth paragraph of appellees' joint answer was filed as a partial defense to the third paragraph of appellants' complaint. It was shown by the allegations of the third paragraph of complaint that appellants' father, William R. Walker, prior to May 17, 1851, died intestate, and seized in fee-simple of the real estate now in controversy, and that he left as his only surviving children and heirs at law the two appellants and one John Walker, all of whom were then minors under the age of 21 years. It was further shown that the interest of said John Walker in such real estate was sold and conveyed upon the petition of the legal guardian of John Walker, and pursuant to the orders of the proper court, to the Peru & Indianapolis Railroad Company; and that, before the commencement of this suit, the said John Walker died intestate and without issue, leaving the appellants, his brother and sister, as his only heirs at law. The fourth paragraph of appellees' joint answer was pleaded in bar of that part of the third paragraph of complaint wherein appellants, as the only heirs at law of their deceased brother, John Walker, sought to have their title as such heirs quieted in and to the real estate in controversy, as against appellees. In such fourth paragraph of their answer, appellees alleged that in the life-time of John Walker, to-wit, on the ------ day of February, 1858, said John Walker brought an action for the recovery of the real estate now in controversy against one William Rowley, in the Jennings circuit court; that on that day, and for a long time afterwards, William Rowley was in possession of and claiming title to such real estate under and by reason of the aforesaid guardians' sales and conveyances, and under and by virtue of no other claim or title whatever, the said Rowley being the grantee of the Peru & Indianapolis Railroad Company; that such proceedings were had in said action that judgment was therein rendered by the court against John Walker, and in favor of William Rowley; that John Walker was not the owner of such real estate, or of any part thereof, and was not entitled to possession thereof; that such judgment had never been reversed, annulled, or set aside, but remained in full force; that it was rendered on the same cause of action mentioned in the third paragraph of appellant's complaint in this case in so far as such paragraph sought to recover the interest in such real estate which, before said guardians' sales, belonged to said John Walker, since deceased; and that said William Rowley was a grantor of the appellees, and they claimed title to, and were in the possession of, such real estate through said William Rowley, and through and under the title thereto, which he successfully opposed to John Walker's action.

It is claimed by appellants' counsel that this fourth paragraph of appellees' joint answer was not good even as a partial defense to the cause of action stated in the third paragraph of the complaint herein. If this claim of counsel were correct, then, as appellees' demurrers to appellants' joint reply to such fourth paragraph of answer searched the record, such demurrers ought to have been carried back and been sustained by the court to such paragraph of answer. In discussing the alleged insufficiency of the fourth paragraph of appellees' joint answer, appellants' counsel say: “The adjudication referred to in this paragraph did not establish Rowley's title. The pertinent question now is, where and how did appellees derive their title? They must rely on the strength of their own title, and not on the weakness of ours.” It is true, perhaps, that the adjudication did not establish Rowley's title; but it did establish conclusively that John Walker and the appellants, in so far as they claimed under John, had no such title to the real estate as would enable him or them to recover the interest which John Walker had therein prior to the guardians' sales either from William Rowley or from the appellees, who claimed under Rowley. That far forth the adjudication pleaded in the fourth paragraph of appellees' joint answer constituted a complete bar to the maintenance of appellants' action. Campbell v. Cross, 39 Ind. 155;Parker v. Wright, ...