Weaver v. Apple
| Decision Date | 31 March 1897 |
| Docket Number | 17,914 |
| Citation | 46 N.E. 642,147 Ind. 304 |
| Parties | Weaver et al v. Apple |
| Court | Indiana Supreme Court |
From the Elkhart Circuit Court.
Affirmed.
E. A Dausman and W. J. Davis, for appellants.
F. E Baker and C. W. Miller, for appellee.
This was a suit by the appellee against the appellants and involved questions of title to real estate, alleged trespasses committed and threatened by the appellants, a claim for damages for such trespasses and an injunction against further trespasses and claims of ownership.
The trial court overruled the appellants' demurrer to the complaint as originally filed and thereafter the appellee filed an amended complaint. One assignment of error is upon the court's action in overruling the demurrer to the complaint. The practice is well established that an amended pleading takes out of the record the original pleading with the rulings thereon. State, ex rel., v. Jackson, 142 Ind. 259, 41 N.E. 534; Gowen v. Gilson, 142 Ind. 328, 41 N.E. 594, and authorities cited in each.
If the amended complaint were the basis of the assignment of error there would be no available error in the action of the trial court in overruling a demurrer to such pleading, for the want of facts, in view of the appellants' admission, in their brief, that
Nor could the ruling upon the second ground of demurrer, the misjoinder of causes of action, become available, because of the provision of the code that "No judgment shall ever be reversed for any error committed in * * * overruling a demurrer for misjoinder of causes of action." Section 344, Burns' R. S. 1894 (341, R. S. 1881.) However, in view of the provisions of the code, sections 249, 412, 1162, Burns' R. S. 1894, it may be doubted whether there is much force in the proposition that causes of a legal and those of an equitable nature may not be joined.
The remaining assignment of error is upon the action of the trial court in overruling the motion of the appellants for a new trial.
The trial was by the court, and resulted in a special finding of the facts with conclusions of law stated. The grounds of the motion for a new trial were: (1) That the findings of the court were contrary to law; (2) that special findings numbered 2, 6, 7, 8, 10 and 11 were not sustained by sufficient evidence; (3) that "the decision of the court" was contrary to law; (4) that "the decision of the court" was not supported by sufficient evidence.
Of the causes for a new trial so assigned none are available, excepting those which fall within the sixth subdivision of section 568, Burns' R. S. 1894 (559, R. S. 1881), which is as follows: "That the verdict or decision is not sustained by sufficient evidence, or is contrary to law." The word "decision," employed in this provision of the statute, is used in the sense of finding, where the cause is tried by the court. Rodefer v. Fletcher, 89 Ind. 563; Christy v. Smith, 80 Ind. 573; Wilson v. Vance, 55 Ind. 394; Weston v. Johnson, 48 Ind. 1.
It has been held also that "an assignment, as one of the grounds for a new trial, that the decision of the court is contrary to law, does not perform the office of an exception to conclusions of law stated upon a special finding of facts. Bundy v. McClarnon, 118 Ind. 165, 20 N.E. 718; Rose v. Duncan, 43 Ind. 512; Cruzan v. Smith, 41 Ind. 288; City of Logansport v. Wright, 25 Ind. 512; Welch v. Bennett, 39 Ind. 136.
It follows, from these propositions, that the causes for a new trial alleged by the appellants must be considered with reference only to the facts found by the trial court; that the first and third causes assigned raise but one question, and that the second and fourth causes raise but one question.
It is argued that the findings were contrary to law because of the failure of the court to find certain...
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