Zink v. Zink

• Decision Date: 07 October 1914
• Docket Number: No. 8385.,8385.
• Citation: 106 N.E. 381,56 Ind.App. 677
• Parties: ZINK v. ZINK.
• Court: Indiana Appellate Court

56 Ind.App. 677

106 N.E. 381

ZINK

v.ZINK.

No. 8385.

Appellate Court of Indiana, Division No. 2.

Oct. 7, 1914.

Appeal from Circuit Court, Wells County; Charles E. Sturgis, Judge.

Action by Sarah Zink against Edward Zink. From a judgment for defendant upon his cross-complaint, plaintiff appeals. Affirmed.

Wm. H. Eichhorn and Edwin C. Vaughn, both of Bluffton, for appellant. Abram Simmons and Frank C. Dailey, both of Bluffton, for appellee.

IBACH, P. J.

This was an action for divorce. Appellant filed a complaint against appellee, in which she asked a divorce and settlement of all financial matters between the parties, and that appellee be required to state specifically certain pretended claims which he held against her.

[1] The questions presented by this appeal arise upon the thirteenth paragraph of appellee's cross-complaint and the fourteenth paragraph of answer thereto. The thirteenth paragraph of cross-complaint was for money furnished to appellant to pay off a mortgage on her separate real estate, which she had agreed to repay to appellee. The court did not err in sustaining appellee's demurrer to the fourteenth paragraph of answer thereto, which averred that the cause of action sued on in the thirteenth paragraph of cross-complaint “did not accrue within six years before the commencement of the action alleged in said thirteenth paragraph of cross-complaint.” There is no averment that the claim sued on in the cross-complaint did not accrue more than six years before the commencement of appellant's action. A defendant may set up in a cross-complaint a cause of action which was not barred by the statute of limitations at the time the plaintiff's action was filed, and such cause of action cannot become barred by the statute during the pendency of the plaintiff's action. Eve v. Louis, 91 Ind. 457, 469, 470.

[2] Appellant also urges error in the court's overruling her motion for new trial on the issues presented by the cross-complaint. We need not decide whether this is such a case that a motion for new trial on a portion only of the issues is proper, since, in any event, appellant has failed to present any question as to this motion. The ground of this motion was the sufficiency of the evidence to sustain the decision. Appellant has failed to set out in brief a recital of the evidence of all the witnesses, and therefore has failed to present any question as to the sufficiency of the evidence. Rule 22, Supreme and Appellate Courts (55...