Vogel v. Harlan

277 N.E.2d 173 (1971)

Melvin J. VOGEL, Georgia M. Vogel, Appellants (Defendants below),
v.
Harry HARLAN et al., (Plaintiffs below), Clearwater Land Company, Inc. (Defendant below) Appellees.

No. 270A18.

Appellate Court of Indiana, Division No. 2.

December 27, 1971.

Larry Wallace, Indianapolis, for appellants.

Robert F. Wernle, Wernle, Ristine & Milligan, Crawfordsville, Lyon & Boyd, Greencastle, for appellees.

WHITE, Judge.

Defendant-appellants built a building on a lot they purchased on a conditional sales contract in Indian Hills Estates, a sub-division in Montgomery County on Lake Holiday. The trial court found it to be in violation of restrictive covenants and issued a prohibitory injunction against further construction and a mandatory injunction requiring removal within sixty days. Plaintiff-appellees are the owners of other lots in the sub-division. The Clearwater Land Company, Inc., defendant-appellee is the developer of the subdivision and the vendor of the lot. It filed an answer of disclaimer and made no defense but is enjoined along with the appellants. It has neither appeared nor filed any brief in this court.

On every issue and defense the evidence was in some aspects conflicting, but more importantly, the contradictory inferences which reasonably could have been drawn from it are many. The ultimate facts which emerge, accepting the evidence and drawing the inferences most favorable to plaintiffs, fully support the trial court's judgment and fail to disclose any abuse of discretion. To recite those facts in detail would add nothing worthwhile to the opinion. Nor will we weigh the evidence and substitute our own findings for those we must presume were made by the trial court. Doi v. Huber (1969), 144 Ind. App. 451, 457, 247 N.E.2d 103, 107, 17 Ind.Dec. 367, 372.

The trial court acted in conformity with the principles stated in Sorrentino v. Cunningham (1942), 111 Ind. App. 212, 39 N.E.2d 473; Schwartz v. Holycross (1925), 83 Ind. App. 658, 149 N.E. 699; and Fesler v. Brayton (1896), 145 Ind. 71, 44 N.E. 37, 32 L.R.A. 578.

Defendant-appellants raised affirmative defenses of laches, waiver, and acquiescence. They now complain that the trial court failed to make findings of fact on these issues and rely on Hutter v. Weiss (1961), 132 Ind. App. 244, 177 N.E.2d 339, a case in which there was a special finding of facts and conclusions of law. No request therefor was made in the case at bar and the trial judge properly made merely a general finding for the plaintiffs. Ind. Ann. Stat. § 2-2102 (Burns 1968), now superceded by Trial Rule 52. Horlock v. Oglesby (1967), 249 Ind. 251, 259, 231 N.E.2d 810, 12 Ind.Dec. 270.

The judgment is affirmed.

HOFFMAN, C.J., and SHARP and STATON, JJ., concur.