Walters v. Walters

• Decision Date: 29 January 1907
• Docket Number: No. 20,841.,20,841.
• Citation: 168 Ind. 45,79 N.E. 1037
• Parties: WALTERS v. WALTERS.
• Court: Indiana Supreme Court

168 Ind. 45

79 N.E. 1037

WALTERS

v.WALTERS.

No. 20,841.

Supreme Court of Indiana.

Jan. 29, 1907.

Appeal from Circuit Court, Wabash County; H. B. Shiveley, Special Judge.

Action by Henry Walters against Jacob A. Walters. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under Burns' Ann. St. 1901, § 1337j. Affirmed.Alvah Taylor, for appellant. C. W. Watkins and A. G. Johnson, for appellee.

JORDAN, J.

Appellee, as plaintiff below, sued appellant to recover on an annuity bond or obligation, a copy of which was filed as a part of the complaint. It appears that the appellant is a son of the appellee, and on March 2, 1893, he executed to the latter the bond or obligation in suit, which provides or stipulates as follows: “I, Jacob A. Walters, of Wabash County, Indiana, for ‘and in consideration of one thousand dollars, received of Henry Walters, of Wabash County, Indiana, do hereby bind myself, my heirs, executors, administrators and assigns, firmly by these presents, to pay to the said Henry Walters, forty dollars on the first day of March, 1894, and forty dollars on each recurring year thereafter, so long as Henry Walters may live.’ *** At the death of said Henry Walters this bond shall become void and surrendered to the said Jacob A. Walters, his heirs, executors, administrators and assigns. In witness whereof,” etc. The plaintiff alleges that the defendant paid each installment of $40 until the installment which fell due on March 1, 1897; that the latter, together with the installments falling due on March 1st of the years 1898, 1899, 1900, 1901, 1902, and 1903, he failed and refused to pay; and that the same are all past due and wholly unpaid. “Wherefore judgment is demanded,” etc. Appellant filed an answer to the complaint in five paragraphs, to which appellee replied. Upon the issues joined there was a trial by the court, and, by request of the parties, the court made a special finding of facts and stated its conclusions thereon, which in effect were: First, that the law upon the facts found was in favor of plaintiff, and that the latter was entitled to recover $232, the amount due and unpaid on the obligation or bond in suit; second, that the plaintiff should have judgment against the defendant for that amount. Appellant tendered to the court a special finding of facts and conclusions of law thereon, prepared by his counsel, and moved that this special finding and the conclusion of law thereon be substituted for the special finding and conclusion of law made and stated by the court. This motion the court overruled, to which ruling appellant excepted. The appellant also unsuccessfully moved the court for a judgment in his favor on the special finding of facts as made by the court. He filed a motion for a new trial, assigning as reasons therein, first, that the decision is not sustained by the evidence; second, that it is contrary to law; third, that the amount of recovery is too large; fourth, that the court erred in permitting certain questions to be propounded and answered by a witness; fifth, that the court erred in omitting to find the facts specially on all of the issues; sixth, that the court erred in omitting to find specially on all the issues tendered by certain paragraphs of the answer; seventh, that the court erred in refusing to sign the special finding of facts tendered by the defendant. The motion for new trial, over his exceptions, was denied, and judgment was rendered in favor of appellee. It is manifest that all of the reasons assigned in the motion for a new trial, except the first, second, third, and fourth, afford no grounds for a new trial, and therefore present no question by being stated as such in the motion. The errors assigned for reversal are, first, that the court erred in each of its conclusions of law on the special finding of facts; second, that the court erred in denying appellant's motion for judgment on special finding of facts; third, that the court erred in overruling motion for new trial. There are other assignments of error-that the judgment is not fairly supported by the evidence; that it is clearly against the weight of the evidence. Such independent assignments as the latter are not authorized. Consequently they present no questions for review.

Counsel for appellee contend that the assignment of errors-first, that the court erred in its conclusion on the special finding of facts is not available because appellant reserved no exception to the conclusion of law; second, that, having failed in this respect, he cannot supply the omission by moving for a judgment in his favor on the special finding; third, that the error predicated on the ruling of the court in denying the motion for a new trial-cannot be considered for the reason that all the grounds properly assigned for a new trial depend upon the evidence, and the latter is not in the record. We...