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French, Adm’r, et al. v. The State, er rel. Manifold.
HOWK, J.—This was a suit by the appellee's relator against the appellants, upon a guardian's bond. The cause was put at issue and tried by the court; and a finding was made for the relator, assessing his damages in the sum of $314.41. The appellants' motion for a new trial having been overruled, and their exception saved to such ruling, the court rendered judgment against them in the relator's favor, for the damages assessed and costs.
The overruling of their motion for a new trial is the only error assigned by the appellants in this court. Under this supposed error the appellants' counsel has devoted the principal portion of his elaborate brief of this cause to the discussion of the alleged insufficiency of the evidence to sustain the finding of the trial court. If the evidence were properly in the record, we could not determine this point in favor of the appellants; for there is evidence contained in the bill of exceptions tending to sustain the finding of the court on every material point. In such a case this court will not weigh the evidence, nor attempt to determine its preponderance in favor of either party. For this purpose, the learned judge who tried the cause had opportunities and facilities which we, as an appellate court, can not have; and it is for this reason that it has been so often decided that this court would not disturb the finding of the trial court or the verdict of a jury upon the weight of the evidence. Hayden v. Cretcher, 75 Ind. 108.
Besides, although the bill of exceptions, in this case, concludes with the usual formula, “this was all the evidence given in the cause," yet it affirmatively appears on the face of the bill, that it does not contain all the evidence given in the cause.
In such a case this court has uniformly held that it would not decide any question which depended for its proper decision
the evidence in the cause. Railsback v. Greve, 58 Ind. 72; Brownlee v. Hare, 64 Ind. 311; Hammon v. Sexton, 69 Ind. 37; Fouty v. Morrison, 73 Ind. 333.
In their motion for a new trial, the appellants assigned as
French, Adm'r, et al. v. The State, er rel. Manifold.
a cause therefor, that "the court erred in admitting in evidence the report and settlement of Howell B. French.” Shepherd Manifold, the relator's guardian, whose bond as such was the bond in suit, died in January, 1875, before the relator became of lawful age; and the appellant Howell B. French was the administrator of said decedent's estate. In 1876, one Thomas Sears was appointed and qualified as the guardian of the relator. Afterwards, in August, 1876, French, as the administrator of the deceased guardian, made a written report to the court, in the matter of such guardianship, to the effect that no money, belonging to the relator, had been received by him; but that he had received certain notes and accounts, particularly describing them, which belonged to the relator, and which he had turned over to Sears, the relator's then guardian. This report appeared to have been approved and confirmed by the court. The bill of exceptions in this case shows that, when the relator offered this report in evidence, the appellants objected to its admission on the ground that it was irrelevant and immaterial, and that the court overruled the objection, and admitted the report in evidence, for the purpose only, as stated by the court, of identifying, as it tended to do, the notes which were in evidence, as the notes which French as such administrator had turned over to Sears, as the relator's guardian. It appears, also, that the final report of Sears, the relator's last guardian, was admitted in evidence by the court, over the same objections of the appellants, for the same limited purpose of identifying the notes in evidence, as being the same notes turned over to Sears by the administrator of the relator's first guardian.
We are of the opinion, that these reports were competent evidence for the limited purpose for which the court admitted them; and it can not be supposed that these reports were used, or had any possible effect for any other purpose than the one for which they were admitted.
As the evidence appears in the record, we can not say that the court erred in assessing the relator's damages; nor could
Towell et al. v. Hollweg et al.
we say so, even if the damages had been assessed at a much larger sum than they were.
We have found no available error, in the record of this cause, for the reversal of the judgment below.
The judgment is affirmed, with costs.
TOWELL ET AL. v. HOLLWEG ET AL.
81 151 130 295
81 154 145 535
SUPREME COURT.-Joint Assignment of Errors.—Where a joint demurrer by
several to a pleading is overruled, an assignment of error by each separately, that the ruling was erroneous as to him, presents no question in
the Supreme Court. SAME.- Complaint. The sufficiency of a complaint against two defend
— ants can not be questioned for the first time in the Supreme Court as
to its sufficiency as against one only. CHATTEL MORTGAGE. — Recording. - Time.—The time within which the stat
ute requires a chattel mortgage to be recorded, R. S. 1881, section 4913, is computed by excluding the day on which it was executed and in
cluding that on which it was recorded. PRACTICE.—Special Finding.--Harmless Error.—Where it appears from the
whole record that a particular fact was really not in dispute on the trial, but treated as admitted, it is not essential that the court should, in a special finding of the facts under section 551, R. S. 1881, state such fact. From the Madison Circuit Court.
E. P. Schlater, C. L. Henry, A. B. Young and W. S. Diven, for appellants.
J. W. Baird, H. D. Thompson and T. B. Orr, for appellees.
FRANKLIN, C.—This is an action brought by appellees against appellants for the possession of certain goods, and damages for the detention thereof.
Appellants answered separately by denials, and appellant Brown answered specially in a second paragraph, that he held
Towell et al. v. Hollweg et al.
possession of the property as assignee of Towell, for the benefit of Towell's creditors; that the assignment was executed on the 6th day of January, 1879, duly recorded, and that he had taken possession of the property as trustee under the same; that appellees claimed said property by virtue of a mortgage executed December 28th, 1878, and recorded January 7th, 1879, and that said mortgage was void; copies of both the assignment and mortgage were filed therewith. A separate demurrer of Brown to the complaint, and a demurrer of appellees to the second paragraph of Brown's separate answer, were both overruled, and a reply in denial filed. Trial by court, special finding with conclusions of law, and judgment for appellees.
The errors assigned in this court are:
2d. The complaint does not state facts sufficient to constitute a cause of action against Towell.
3d. Error in overruling Brown's demurrer. 4th. Error in the conclusions of law.
The assignment of errors being joint, the second and third specifications, being separate, can not be considered. As to the first general specification, that the complaint does not state facts sufficient to constitute a cause of action, the imperfections of the complaint have been remedied by a certified copy under a certiorari. It is regular in form, in accordance with the statute, and entirely sufficient.
The main controversy between the parties appears to arise under the exception to the conclusions of law upon the special finding. The court found substantially the following facts :
Appellant Towell, on the 28th day of December, 1878, to secure a good faith indebtedness, executed a mortgage upon the property in controversy to appellees; that the mortgage was duly recorded in Madison county, Indiana, on the 7th day of January, 1879; that on the 6th day of January, 1879, appellant Towell executed an assignment for the benefit of his creditors, to appellant Brown, which was duly recorded,
Towell et al. v. Ilollweg et al.
and under which Brown took possession of the property; upon which, as a conclusion of law, the court found for appellees.
Two objections are presented to this conclusion : 1st, that there was no finding that the mortgagor, at the date of the execution and recording of appellees' mortgage, resided in Madison county, Indiana, and therefore there was nothing to base a conclusion on that the mortgage was valid. The mortgage was made a part of the record by appellant Brown. It stated that the mortgagor was “of Madison county, in the State of Indiana," ete. He was sued in said county, and answered as a resident thereof. There was no controversy in the pleadings or upon the trial, in relation to the residence of the mortgagor, and that it was not essentially necessary for the court to state in its special finding that the mortgagor resided in said Madison county ; that was treated during the trial as an admitted fact.
The real controversy appears to be over the second objection, and that is, that the mortgage was not recorded within the time required by the statute; that, in estimating the time within which a chattel mortgage must be recorded, in order to make it valid against third parties, the day upon which it was executed can not be excluded and the day of recording included, but they must both be included. The statute provides that the mortgage shall be recorded within ten days after the execution thereof.
In the miscellaneous provisions of the code, 2 R. S. 1876, p. 311, the 787th section provides, that “The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.”
In the case of Brown v. Buzan, 24 Ind. 194, it was held that in computing the time in a contract for the acceptance of cattle within eight days from the time of the contract, the day of the contract and that of acceptance must both be included.
In the case of Tucker y. White, 19 Ind. 253, it was held that