Larson v. Smitley

Cooper, J.

This is an appeal from a judgment entered upon special findings of fact and conclusions of law, in an action seeking a final dissolution and the termination of a partnership.

It appears from the record that the parties hereto had in fact dissolved and terminated their partnership, but that subsequently they could not agree as to the distribution of the various partnership assets and property.

The assigned error on appeal is the overruling of the Appellant’s Motion for a New Trial. The pertinent parts of the Appellant’s Motion for a New Trial are as follows:

“1. That the decision of the Court in its special findings of fact is not sustained by sufficient evidence and the decision of the Court is contrary to law as regards paragraph 1, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, and 33 thereof.

“2. That the Court failed to find certain facts and the Court was silent as to these facts, and, in effect, decided negatively against the Defendant and Cross-Claimant; and such decision is contrary to law . . .”

We find from the record that the Plaintiff below, Thomas H. Smitley, brought an action against Guy Eugene Larson, praying for, in substance, the dissolution of a partnership known as the Exchange Realty and Insurance Company, and asking that the property of the partnership be divided, distributed or partitioned between the parties, and that the partnership liabilities and debts be ordered paid. The defendant, Appellant herein, filed an answer admitting substantially all of the material averments of the plaintiff’s complaint, with the exception of the agreement of dissolution and termination, and thereafter filed his cross-complaint alleging almost verbatim the averments of the plaintiff’s complaint.

Therefore, the record affirmatively reveals that by the averments of the complaint, cross-complaint, and the prayers thereof, both parties requested the trial court to enter a decree of dissolution and accounting, and that the property of the partnership be divided, distributed or partitioned, and that the debts or liabilities of the partnership be paid off and that any surplus be divided between the parties.

After the trial of the cause, the trial court made and filed its final special findings of fact and conclusions of law thereon.

The special findings of fact and conclusions of law thereon are voluminous and no real purpose would be served by setting forth herein the special findings of fact and the conclusions of law.

It is to be noted that in the hereinbefore set out portions of the Motion for New Trial, by cause No. 1 thereof, special findings of fact numbered 1, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, and 33 of the special findings of facts are separately challenged as “. . . not being sustained by sufficient evidence and the decision of the Court is contrary to law . . .” However, the Motion for New Trial did not challenge the special findings of fact as a whole. Therefore, the Appellant’s specification No. 1 of his Motion for a New Trial presents nothing for our consideration- on appeal. Such purported causes for a new trial are not authorized by our statute. West’s Indiana Practice, Sec. 1768, p. 528; Morsches-Nowels Lumber Co. v. Pence et al. (1939), 106 Ind. App. 219, 222, 18 N. E. 2d 958; Major, et al. v. Miller, et al. (1905), 165 Ind. 275, 278, 75 N. E. 159; Federal Life Insurance Co. v. Maxam, et al. (1919), 70 Ind. App. 266, 289, 117 N. E. 801, 118 N. E. 839; Thread Mills Co. et al. v. Hubbard, et al. (1926), 85 Ind. App. 5, 7, 152 N. E. 294; Armstrong v. Peoples State Bank of Windfall, et al., (1928) 88 Ind. App. 1, 4, 161 N. E. 652.

Notwithstanding the apparent conclusions to be drawn from the . case of Nunamaker v. Glassburn, et al. (1965), 137 Ind. App. 655, 210 N. E. 2d 668, we feel the foregoing cases are still the law, as our supreme court has never overruled or modified the pertinent and prevailing precedents enunciated in the. above cited cases, by either case law or rule.

It is claimed by the Appellant in cause No. 2 of his Motion for New Trial “that the Court failed to find certain facts and the. Court was silent to these facts, and, in effect, decided negatively against the defendant and cross-claimant; and such decision is contrary to law.” It is the general rule of law as contended by Appellant, that where pertinent and material facts are proved, but the Court does not find upon them and thereby impliedly finds that they are not proven, the finding in such respect is .contrary to law. See Lowes Revision of Works Indiana Practice and Pleading, Vol, 4, Sec. 61: 83, p. 69; Casady v. Lacy (1933), 97 Ind. App. 32, 35, 184 N. E. 427, and authorities cited therein. In reviewing the trial court’s findings it is apparent and also admitted by the Appellant in his brief that the court’s special findings of fact were negative and against the Appellant, who under his cross-complaint had the burden of proof in respect thereto. ^

However, we have read and considered all the evidence in the record now before us. This court on appeal will not weigh the evidence. The trial court - had the parties before it and it was his duty to determine the credibility of the witnesses.

We are of the opinion that the trial court did find the necessary, material and controlling facts, and the decision of the court is not contrary to law because of a failure to find facts favorable to the Appellant as is contended.

Wé find no reversible error and the judgment of the Lake Circuit Court is affirmed.

Carson, P. J., and Prime, J., concur. Faulconer, J., concurs, with separate opinion.