Zimmerman v. Gaumer

• Citation: 152 Ind. 552, 53 N.E. 829
• Case Date: May 17, 1899
• Court: Supreme Court of Indiana

152 Ind. 552
53 N.E. 829

ZIMMERMAN
v.
GAUMER et al.

Supreme Court of Indiana.

May 17, 1899.

Appeal from circuit court, Cass county; Dudley H. Chase, Judge.

Action by Sarah A. Zimmerman against Milton H. Gaumer and others. From a judgment for defendant Pasley, plaintiff appeals. Reversed.

Frank Swigart, for appellant. John B. Smith, D. D. Dykeman, and George C. Taber, for appellees.

MONKS, C. J.

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 E. 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. Rev. St. 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

[53 N.E. 830]

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 coparties 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, 44 N. E. 25, and 47 N. E. 150), 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 assign as error 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; in the admitting and excluding of evidence. These are all causes for a new trial, and present no question for review in this court. To present any question, they must be assigned as causes for a new trial, 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. Burnett v. Milnes, 148 Ind. 230, 236, 46 N. E. 464;Railway 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. Bank, 147 Ind. 430, 436, 46 N. E. 825;La Follette v. Higgins, 109 Ind. 241, 243, 9 N. E. 780; 3 Cent. Dig. § 3024, col. 856.

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, 124 Ind. 642, 644, 43 N. E. 642, 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. 603, 604;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. 31, 41, 42; Crowell v. City of Peru, 41 Ind. 308, 309;Comer v. Himes, 49 Ind. 482, 487, 488; Elliott, App. Proc. §§ 710, 720. This does not seem to be the rule, under some circumstances, when the demurrer is sustained. State v. Fitch, supra.

Overruling appellant's 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

[53 N.E. 831]

cases cited; 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...