Wolverton v. Wolverton

• Decision Date: 24 May 1904
• Docket Number: No. 20,344.,20,344.
• Citation: 163 Ind. 26,71 N.E. 123
• Parties: WOLVERTON v. WOLVERTON.
• Court: Indiana Supreme Court

163 Ind. 26

71 N.E. 123

WOLVERTON

v.WOLVERTON.

No. 20,344.

Supreme Court of Indiana.

May 24, 1904.

Appeal from Circuit Court, Blackford County; E. C. Vaughn, Judge.

Action by Scelinda E. Wolverton against Abner D. Wolverton. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court, as authorized by Act March 13, 1901 (Acts 1901, p. 590, c. 259). Affirmed.Waltz & Secrest and Dailey, Simmons & Dailey, for appellant. Jay A. Hindman, for appellee.

DOWLING, J.

Action by the appellee against the appellant for a divorce, alimony, custody of four infant children, and an allowance for their maintenance. The causes for divorce alleged in the complaint were cruel and inhuman treatment of the plaintiff by the defendant, and his failure to make reasonable provision for his family for more than two years. Answer in three paragraphs; the first being a general denial, the second alleging condonation of the injuries charged, and the third a plea that the defendant at the time the grievances occurred was a person of unsound mind. Reply in denial. The cause was tried by the court, and at the request of the defendant a special finding of facts was made, and conclusions of law were stated thereon. The conclusions were favorable to the plaintiff, and judgment was rendered against the defendant. The court also made an order requiring the defendant to pay to the plaintiff, as a part of her necessary expenses in prosecuting her action, the fees of her attorney to the amount of $500. By a further order he was directed to pay the sum of $30 per month for the maintenance of the children until the further order of the court. From this judgment and from these allowances, the defendant appeals.

No question is made upon the pleadings. The errors assigned, and not waived by failure to discuss them, are as follows: “(9) The court erred in the conclusions of law stated upon the special finding of facts. (10) The court erred in overruling appellant's motion to modify the conclusions of law stated upon the special finding of facts. (11) The court erred in overruling appellant's motion for a new trial. (12) The court erred in overruling appellant's motion to modify the decree and judgment. (13) The court erred in overruling appellant's motion to modify the judgment.”

The court stated six separate conclusions of law, which were, in substance, as follows: First. That the plaintiff was entitled to a divorce from the defendant. Second. That the plaintiff was entitled to the care and custody of the four children. Third. That the plaintiff was entitled to recover from the defendant, as alimony, $8,466. Fourth. That the defendant be required to pay to the plaintiff $500 for her attorneys' fees in the action, and that he also pay to her for the maintenance of the said children $30 per month until the further order of the court. Fifth. That the deed executed by the defendant October 18, 1902, to Margaret Noonan, was fraudulent and void, and for that reason should be set aside. Sixth. That the plaintiff had a lien upon the said real estate for the amount of her judgment in this action, and that the said real estate should be sold to pay the same.

The ninth assignment of error (being the first set out in this opinion), stating that the court erred in its conclusions of law, is joint, and therefore, unless good as to all said conclusions, it is good as to none. Jones v. State, 160 Ind. 537, 67 N. E. 264, and cases cited; Saunders v. Montgomery, 143 Ind. 185, 41 N. E. 453,Clause, etc., Co. v. Chicago, etc., Bank, 145 Ind. 682, 44 N. E. 256;Royse v. Bourne 149 Ind. 187, 190, 47 N. E. 827;Jones v. Mayne, 154 Ind. 400, 55 N. E. 956,Maynard v. Waidlich, 156 Ind. 562, 565, 60 N. E. 348. It is nowhere asserted that all the conclusions of law upon the facts stated were erroneous; hence this assignment could not avail the appellant. But, even if the assignment had been several, it could not have been considered. Neither in appellant's statement of points and propositions in his brief nor in his printed argument is there any point or proposition to the effect that any conclusion of law stated by the court is erroneous. Rule 22 of this court (55 N. E. v) contains this requirement: “Fifth. *** Following this statement [of so much of the record as fully presents every error and exception relied on] the brief shall contain, under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in support of them. *** No alleged error or point, not contained in this statement of points, shall be raised afterwards, either by reply brief or in oral or printed argument, or on petition for rehearing.” Under the heading of “Propositions and Authorities,” in appellant's brief, two propositions only are set out, viz.: “The decision of the court is not sustained by sufficient evidence; the decision of the court is contrary to law.” Where error is predicated of or upon conclusions of law stated on a special finding of facts, each error relied upon should be set out separately in the assignment of errors; and it should also be separately numbered and stated in the brief of the party complaining, under its proper heading. The propositions or points relied on to support each separate error, together with the authorities to sustain them, must also be set out under such headings. The supposed errors of the court in its conclusions of law are not stated in the brief for appellant, as required by rule 22 (55 N. E. v), supra, and therefore objections to such conclusions cannot be raised by appellant in any manner.

The tenth error assigned-that the court erred in overruling appellant's motion to modify the conclusions of law-presents no question. Such a motion is not recognized by our Code of Procedure. The correctness of conclusions of law can be contested only by proper exception to each conclusion, and by assigning as error in this court that the trial court erred in each conclusion of law, or that the conclusion of law which is challenged is erroneous. Maynard v. Waidlich, 156 Ind. 562, 565, 60 N. E. 348, supra, and cases cited.

The next assignment is that the court erred in overruling appellant's motion for a new trial. The only reasons stated in this motion, discussed by counsel for appellant, are that “the decision of the court is not sustained by sufficient evidence, and that the decision of the court is contrary to law.” Counsel for appellee makes the point that, as there was a special finding of facts, the reasons stated did not authorize the granting of a new trial; that these reasons did not raise any question of the sufficiency of the evidence to sustain the finding of facts, or any of them; and that error in a conclusion of law is not reason for a new trial. So far as the conclusions of law are concerned, it is true that the motion presented no question. Weaver v. Apple, 147 Ind. 304, 306, 46 N. E. 642;Smith v. James, 131 Ind. 131, 30 N. E. 902;Bundy v. McClarnon, 118 Ind. 165, 20 N. E. 718;Weston v. Johnson, 48 Ind. 1, 2;Rose v. Duncan, 43 Ind. 512;Cruzan v. Smith, 41 Ind. 288;Welch v. Bennett, 39 Ind. 136. But we think the reasons stated were sufficient to raise the question of the sufficiency of the evidence to sustain the special finding of facts. Among the reasons named in the statute for which a new trial may be granted is the objection that the verdict or decision is not sustained by sufficient evidence, or is contrary to law. Spec. 6, section 568, Burns' Ann. St. 1901. The term “decision” in the statute necessarily embraces a general finding when the case is tried by the court. It has been held by this court that the term “decision,” as used in the statute, also includes a special finding, and that the words “decision” and “finding” are synonomous. Weaver v. Apple, 147 Ind. 304, 306, 46 N. E. 642;Gates v. Baltimore, etc., R. Co., 154 Ind. 338, 342, 56 N. E. 722;Weston v. Johnson, 48 Ind. 1, 2, supra; Wilson v. Vance, 55 Ind. 394, 396;Christy v. Smith, 80 Ind. 573, 577;Rodefer v. Fletcher, 89 Ind. 563, 564. Upon the authority of these cases we hold that the averments in the motion for a new trial “that the decision of the court was not sustained by sufficient evidence,” and “that the decision was contrary to law,” were equivalent to statements that the special finding was not sustained by sufficient evidence, and that it was contrary to law. They did not, however, present any objection to the correctness of the conclusions of law, but applied exclusively to the finding of facts.

Under the assignments that the decision of the court is not sustained by sufficient evidence, and that it is contrary to law, counsel for appellant contend that the evidence established two facts, either of which was sufficient to defeat the plaintiff's action: (1) That the defendant was of unsound mind when the acts of cruelty charged in the complaint were committed, and (2) that the plaintiff condoned the grievances for which she demanded a divorce, and that the court should have so found. Both of these defenses were set up by special answers, but the finding of the court sustains neither. The failure to find that the defendant was of unsound mind, or that a condonation of plaintiff's injuries took place, was tantamount to a finding that he was not of unsound mind, and that there was no condonation. The rule is well settled that the silence of a special finding in regard to a material fact which a party was required to prove must be taken as equivalent to an express finding against him that such fact was not established by the evidence. State Bank v. Backus, 160 Ind. 682, 693, 67 N. E. 512,and cases cited. The plaintiff introduced no testimony on the issue of the insanity of the defendant, but the expert...