Zimmerman v. Gaumer
| Decision Date | 17 May 1899 |
| Docket Number | 18,477 |
| Citation | 53 N.E. 829,152 Ind. 552 |
| Parties | Zimmerman v. Gaumer et al |
| Court | Indiana Supreme Court |
From the Cass Circuit Court.
Reversed.
Frank Swigart, for appellant.
John B Smith, D. D. Dykeman and George C. Taber, for appellees.
This action was brought by appellant against appellees to set aside a sheriff's sale of real estate on a decree of foreclosure, and the sheriff's deed made thereunder, and to quiet title to the undivided one-fifth of said real estate. The amended complaint, the one upon which the trial was had, was in two paragraphs. The first paragraph set forth the facts concerning the sheriff's sale, and asked that the same be set aside. The second paragraph was in the form provided by statute in actions to quiet title, and asked that the title to said real estate be quieted. Appellees Charles H. and Mary Gaumer filed an answer to said complaint, and also a cross-complaint, in which they alleged that they each owned the undivided one-fifth of said real estate, and sought to set aside said sheriff's sale, and for other proper relief. Appellees Robert G. Pasley and Eliza Pasley his wife filed answers.
The issues joined on the first paragraph of complaint and the cross-complaint were tried by the court, and the second paragraph of the complaint was tried by a jury at the same time. The court, for its information, submitted to the jury the questions of fact arising upon the part of the case tried by the court. At the April term, 1896, of the court below the jury returned a special verdict under the provisions of section 555 Burns Supp., 1897, Acts 1895, p. 248, as to the issues joined upon the second paragraph of complaint, and also upon the questions of fact submitted to it for the information of the court. A motion for venire de novo was filed by appellant at said April term, and overruled by the court. At the September term of said court the court found for appellee Robert G. Pasley upon the issues joined upon the first paragraph of complaint and the cross-complaint, and over a motion by appellant for a judgment in her favor on the special verdict sustained the motion of said Pasley for a judgment in his favor, and rendered a judgment in favor of said Pasley on the issues joined on the first and second paragraphs of the complaint against appellant, and for costs, and in favor of said Pasley against appellees Mary E. Gaumer and Charles E. Gaumer on the issues joined on the cross-complaint, and for costs. Afterwards appellees Charles E. and Mary E. Gaumer and Milton H. Gaumer filed separate motions for a new trial, which were overruled.
Appellee Robert G. Pasley has filed a motion to dismiss the appeal, on the ground that this is a vacation appeal, and all the co-parties to the judgment below have not been made parties appellant in this court.
As heretofore stated, there was a judgment rendered in favor of Pasley against appellant that she take nothing by her complaint, and that he recover of her his costs. The cross-complainants were not parties to the judgment against appellant. There was also a judgment that the cross-complainants take nothing, and that appellee Pasley recover of them his costs. Appellant was not a party to this judgment against the cross-complainants. The cross-complainants were not, therefore, joint judgment defendants with appellant, and she was not required, in a vacation appeal, to make them co-appellants, (Lowe v. Turpie, 147 Ind. 652, 692, 37 L. R. A. 245, 44 N.E. 25), although it may have been proper for her to do so. The motion to dismiss the appeal is therefore overruled.
Appellees Charles E. Gaumer, Mary E. Gaumer and Milton H. Gaumer assign cross-errors against their co-appellees.
Eighteen errors are assigned by appellant, the fifth, sixth, seventh, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth and eighteenth of which assigns as errors that the court erred in sustaining motions to suppress parts of depositions; in sustaining the motion to submit the issues joined upon the first paragraph of the amended complaint to the court without the intervention of a jury, thereby denying appellant a trial by jury as to said paragraph; in sustaining the motion of Robert G. Pasley to require the jury to return a special verdict under the act of 1895; and in admitting and excluding evidence. These are all causes for a new trial, and must be assigned in the motion as causes therefor, and, if such motion for a new trial is overruled, are presented in this court by an assignment of error that the court erred in overruling the motion for a new trial. Ohio, etc., R. Co. v. Judy, 120 Ind. 397, 398, 22 N.E. 252, and cases cited; Huffmond v. Bence, 128 Ind. 131, 137, 27 N.E. 347; Childers v. First. Nat. Bank, etc., 147 Ind. 430, 436, 46 N.E. 825; LaFollette v. Higgins, 109 Ind. 241, 243; American Digest, Vol. 3, section 3024, Column 856. The assignments of error therefore present no question for review in this court.
The court sustained the separate demurrers of Robert G. Pasley and Eliza J. Pasley to the complaint, and these rulings are assigned as the first and second errors. They are not available, however, for the reason that the complaint to which said demurrers were addressed was not copied into the transcript; and for the further reason that, even if the complaint had been copied into the transcript, the error, if any, in sustaining said demurrer, was waived by appellant when she filed an amended complaint which took from the record the complaint, the pleading to which the demurrers were addressed. State v. Jackson, 142 Ind. 259, 41 N.E. 534, and cases cited; Gowen v. Gilson, 142 Ind. 328, 41 N.E. 594, and cases cited; Hedrick v. Whitehorn, 145 Ind. 642, 644, 43 N.E. 942, and authorities cited; Aydelott v. Collings, 144 Ind. 602, 603, 43 N.E. 867, and cases cited.
Overruling a motion to strike out a part or parts of a pleading is not available error; therefore the third error assigned presents no question. Pfau v. State, 148 Ind. 539, 542, 543, 47 N.E. 927; Petree v. Brotherton, 133 Ind. 692, 695, 32 N.E. 300.
The fourth error assigned is that "the court erred in overruling appellant's demurrer to the second paragraph of Robert G. Pasley's answer." This demurrer, however, has not been copied into the record, but instead is the following, "Not on file." In such case, even if the pleading is bad for any cause, the presumption is that the ground of objection stated in the demurrer did not reach the defect, if any, in the pleading, and was properly overruled for that reason, or that the same was so defectively stated as to present no question. Dunn v. Dunn, 149 Ind. 424, 425, 49 N.E. 346; Head v. Doehleman, 148 Ind. 145, 146, 46 N.E. 585; Aydelott v. Collings, 144 Ind. 602, 604, 43 N.E. 867; State v. Fitch, 113 Ind. 478, 480, 16 N.E. 396; Shackman v. Little, 87 Ind. 181, 182; Long v. Town of Brookston, 79 Ind. 183; Jessup v. Trout, 77 Ind. 194, 195; Hammon v. Sexton, 69 Ind. 37, 41, 42; Crowell v. City of Peru, 41 Ind. 308, 309; Comer v. Himes, 49 Ind. 482, 487, 488; Elliott's App. Proc. sections 710, 720. This does not seem to be the rule under some circumstances, when the demurrer is sustained. State v. Fitch, supra.
Overruling appellants motion for a venire de novo is the eleventh error assigned. The motion for a venire de novo was in writing, and specified as a ground therefor, "that the jury have not found all the facts in the cause." It is settled in this State that a failure of a jury or a court to find all the facts is not a ground for a venire de novo. If the facts, within the issue established by the evidence, are not all found, or, if found, are contrary to the evidence, or not sustained by it, the remedy is a motion for a new trial, and not a motion for a venire de novo. Jones v. Casler, 139 Ind. 382, 388, 38 N.E. 812, and cases cited; Hoosier Stone Co v. McCain, 133 Ind. 231, 234, 31 N.E. 956; Branson v. Studabaker, 133 Ind. 147, 161, 163, 33 N.E. 98, and authorities cited. Moreover, there was no exception by appellant to the action of the court in overruling said motion. Said ruling, therefore, even if erroneous, is not available. Elliott's App. Proc. sections 293, 624, 783, 788.
The eighth and ninth assignments of error call in question the action of the court in rendering judgment on the special verdict in favor of appellee Robert G. Pasley. The special verdict finds, in substance: That, in 1887, Moses S. Gaumer was the owner of a life estate in eighty acres of real estate in Cass county, Indiana, and that his children, Eliza J. Pasley, Charles, Ella, Jeremiah F., and Milton H. Gaumer, were the owners of said real estate in fee simple, as tenants in common, subject to said life estate that said Moses S. Gaumer borrowed $ 250 in 1887, to erect a barn on said real estate, and said Moses S. Gaumer, Robert G. Pasley, Eliza J. Pasley his wife, Jeremiah F. Gaumer, Sarah A. Gaumer, his wife (now the appellant Zimmerman), Charles E. Gaumer, and Milton H. Gaumer executed a note for said money, and a mortgage on said eighty acres of real estate to secure the same. Ella Gaumer, the owner of the undivided one-fifth of said real estate, did not join in said note or mortgage. Said barn was a necessary and permanent improvement to said land, and the owners of said real estate who joined in said mortgage received the consideration therefor. The mortgage recited that the note was given by Moses S. Gaumer for the benefit of all the mortgagors. Afterwards, on July 9, 1890, Moses S. Gaumer as principal, and Milton H. Gaumer as surety, executed three notes to the J. I. Case Threshing Machine Company for $ 1,983.50, and as an additional security therefor said Moses S. Gaumer and his wife (he having married) executed a mortgage on said eighty...
To continue reading
Request your trial