DocketNumber: No. 12,708
Citation Numbers: 114 Ind. 220
Judges: Howk
Filed Date: 3/31/1888
Status: Precedential
Modified Date: 7/24/2022
In this case, appellant, Emma Stafford, and John Trimble, as jfiaintiffs, sued appellees, Josephus and Augustus Cronkhite, as defendants, in a complaint of two paragraphs, to recover the possession of certain real estate, particularly described, in Warren county. In the first paragraph, plaintiffs alleged that they were the equitable owners and entitled to the possession of such real estate; and in the second paragraph of their complaint, they averred that they were the owners in foe simple and entitled to the possession of the same real estate.
Defendants jointly answered in three paragraphs, as follows : 1. A general denial of the complaint. 2. Plaintiffs’ cause of action did not accrue within twenty years last past prior to the commencement of this suit. And 3. A former adjudication.
Defendant Augustus Cronkhite filed his separate cross-complaint herein, praying the court to quiet his title to the real estate in controversy herein against the false claims thereto-of the plaintiffs.
The issues joined were submitted to the court for final hearing, and the court found generally for the defendants, and specially for defendant Augustus Cronkhite, as to the issues joined on his cross-complaint; and over the separate motion of plaintiff Emma Stafford for a new trial, the court finally adjudged and decreed that plaintiffs take nothing by their suit herein, that the title of defendant Augustus Cronkhite in and to the real estate in controversy herein be forever quieted as against the plaintiffs, and that defendants recover of plaintiffs their costs herein expended, taxed at, etc.
The first error complained Qf here, on behalf of plaintiff Emma Stafford, is the overruling of her separate motion for a new trial. In this motion, she assigned a number of causes for such new trial; but the cause upon which her learned counsel seem to place their chief reliance.for the reversal of the judgment below is thus assigned in her motion, namely: “ Error of law in this, to wit: Because the court erred in overruling the plaintiff’s objection to the introduction in evidence of a motion for a new trial, as a matter of right, the bond for costs, the affidavit of non-residence, the proof of publication of notice, the summonses and returns thereon, and the order-book entries in said cause No. 2443, other than those introduced by plaintiff.”
It is shown by the bill of exceptions, which is properly in the record, that the plaintiff objected to the introduction of the evidence recited in the cause for a new trial above quoted, and to each separate portion of such evidence, “ on the ground that the same was irrelevant and incompetent, because the said evidence nowhere shows an order of said court vacating the judgment rendered in fa for of plaintiffs in said cause, nor any order of court granting a new trial of said
Plaintiff’s evidence in the case at bar tended to prove that on the 29th day of April, 1881, Jesse, John A. and Helen M. Trimble, and Josephine Hedges commenced an action in the court below against said Josephus Cronkhite to recover possession of the same real estate now in controversy; that, in that action, Josephus Cronkhite appeared and answered by a general denial of the complaint; that the action was then continued from term to term of the court below until its Juno term, 1883, when the trial of the cause by the court resulted in a finding and judgment in iavor of the plaintiffs and against defendant therein for the recovery of such real estate and the costs of suit; that on June 8th, 1880, Jesse Trimble conveyed all his interest in the real estate now in controversy to Elizabeth Trimble by his quitclaim deed, recorded July 12th, 1882, in the recorder’s office of "Warren county; that said Josephine Hedges, nee Trimble, and her husband, Dennis Hedges, conveyed the real estate now in controversy to James McCabe by quitclaim deed, dated December 23d, 1881, and recorded July 12th, 1882, in the proper recorder’s office ; that on November 4th, 1881, Henry Trimble conveyed his interest in the real estate now in controversy to James McCabe, by deed recorded December 9th, 1881, in the proper recorder’s office; that on September 29th, 1883, Jesse Trimble conveyed his interest in such real estate to Emma Stafford, by deed recorded October 15th, 1883, in the proper recorder’s office; that, on March 9th, 1882, James McCabe and wife conveyed all his interest, in such real estate to Elizabeth J. Trimble, by deed recorded July 12th, 1882, in the proper recorder’s office; and that said Elizabeth J. Trimble died in 1882, and before the commencement of this suit, leaving as her only heirs at law Jesse Trimble, her husband, and said Emma Stafford, the plaintiff in this action. And here plaintiff rested her case.
It is very clear, we think, that plaintiff’s evidence herein,
The question for decision, then, may be thus stated: Does the defendants’ evidence, on the trial of this cause, fairly show that the first judgment in the former action was vacated and set aside upon defendant’s application for a new trial as a matter of right, and that the court below and the parties on both sides, in the belief that such new trial had been granted, and without objection from any one, subsequently re-tried the issues in such former action, and that such re-trial resulted in a finding and judgment for defendant therein ? Or (stating the question differently), upon the showing made by defendants’ evidence in regard to the first judgment in the former action, can the plaintiff be heard to claim in this action that such first judgment was not vacated by the court below, and a new trial granted as a matter of right to the defendant in such former action ? We are of opinion that the first of the questions stated must be answered in the affirmative, while the last question stated must be answered in the negative.
The exact date of the first judgment in the former action is not given, but plaintiff’s evidence indicates that it was rendered on the thirteenth day of the June term, 1883, of such court. The evidence introduced by defendants herein,
In section 1064, E. S. 1881, it is provided as follows: The court rendering the judgment, on application made within one year thereafter by the party against whom judgment is rendered, his heirs, assigns, or representatives, and on the applicant giving an undertaking, with surety to be approved by the court or clerk, that he will pay all costs and damages which shall be recovered against him in the action, shall vacate the judgment and grant a new trial.”
The evidence introduced by defendants on the trial of this cause, the substance of which we have given, shows very
We have found no error in the record of this cause which authorizes or requires the reversal of the judgment.
The judgment is affirmed, with costs.