Richardson v. Stephenson , 38 Ind. App. 339 ( 1906 )

Roby, J.

This suit was brought by appellees to quiet title to a strip of ground claimed by virtue of a division made by the owners of a certain tract of land twenty years prior to its commencement; The suit was instituted against appellant and her husband. The original complaint was in two paragraphs, one to quiet title and the other for partition. The defendants filed an answer to both paragraphs, setting up ownership of the land in dispute and asking to have their title thereto quieted. A trial was had which resulted in a finding and decree for appellant and her husband. Within a year from date of decree, appellees filed a bond for a new trial as of right under the statute, which new trial, over the objection of appellant, was had. Pending the second trial her husband and codefendant died, and the case proceeded against the appellant upon the amended complaint, upon which issues were formed and a trial had, resulting in a finding and decree for appellees, from which decree this appeal is taken.

1. No record entry was made vacating the prior decree. The court had, however, no discretion but to grant a new trial and vacate the decree, upon the steps set out by statute-having been taken. Anderson v. Anderson (1891), 128 Ind. 254. It appearing that a new trial was in fact granted and had, a formal record thereof should have been made to conform to the fact, and the circuit court is therefore directed to make such record. Harris v. Curtis (1905), 34 Ind. App. 438, 440; Merom Gravel Co. v. Pearson (1904), 33 Ind. App. 174.

2. The third assignment challenges the action of the court in overruling appellees’ demurrer to the first paragraph of amended complaint. The defect pointed out is one which might have been amended by the court below, and will therefore be deemed to be amended in this court. §670 Burns 1901, §658 E. S. 1881.

3. The demurrer was directed to the plaintiffs’ complaint, for which reason the assignment does not present a question. The same is true of the demurrer to the second paragraph of complaint and the fourth assignment of error.

4. There was no error in sustaining appellees’ demurrer to appellant’s third paragraph of answer, all the facts therein averred being admissible under the general denial. Watson v. Lecklider (1897), 147 Ind. 395.

5. The appellant’s motion for a new trial was filed June 29 in vacation. The decree appealed from was made on April 28 and the term closed on April 30. The statute provides that a motion may be made at any time during the term at which the verdict or decision is rendered, and if such verdict or decision is rendered on the last day of any term a motion may be filed on the first day of the next term of court. The judgment appealed from was not rendered on the last, day of the term, and the motion was not, therefore, made in time. Dugdale v. Doney (1903), 30 Ind. App. 240.

6. A review of the evidence leads to the belief that the conclusion reached was the correct one upon the evidence.

Decree affirmed.