Fleetwood v. Denny

Carson, J.

This is an appeal from a judgment of the Jackson Circuit Court in a cause tried by the court without jury. The appellants filed an action against the appellees for partition of a famliy farm in Jackson County, Indiana. The appellees filed a counter-claim to quiet the title to said real estate in themselves and in the appellant, Helen F.- Westlund.

The appellants’ amended complaint alleged in substance that the appellants W. Claude Fleetwood (also known as William C. Fleetwood and W. C. Fleetwood) and his wife Nellie M. Fleetwood owned half of said farm and Mr. Fleetwood’s sisters, Mrs. Westlund (an appellant) and the appellees Mesdames Denny, Wheeler, Thickston, Lyon and Layton each owned one-twelfth (1/12) of the farm (subject to a life estate of one-third (%) of Mrs. Layton’s share in the name of Gene (Jean Fleetwood). The amended complaint further alleges that Bertha Bright is claiming some interest in said real estate. The amended complaint further alleges that the real estate is indivisible and should be sold.

The first paragraph of appellees’ answer is an admission and denial pursuant to Rule 1-3, Rules of the Supreme Court of Indiana. Said paragraph admits the alleged one-twelfth (1/12) interests set out in the complaint and admits that Bertha Bright claims some interest in the real estate. The remaining rhetorical paragraphs of complaint being denied.

The appellees’ counter-claim to quiet title alleged in substance that the appellees and the appellant Helen F. Westlund own said farm and asks that the title of said appellees and appellant Westlund be quieted against the .claims of W. Claude Fleetwood and Nellie M. Fleetwood. After filing a motion to strike Paragraph II of appellees’ answer on the ground that it violated Rule 1-3 of the Supreme Court of Indiana, which was overruled, the appellants denied Paragraph II of appellees’ answer. Appellants filed an answer to the appellees’ counter-claim which denied all of the statements in said counter-claim except the statement that the appellant Nellie M. Fleetwood claims an interest in the land adverse to the claim and title of any other party, which statement was admitted.

The appellees filed a motion for an abstract of title which motion was granted and the abstract filed in the cause. The court entered its findings and rendered judgment in favor of appellees.

The appellants timely filed motion for a new trial together with affidavits, to which appellees filed a memorandum opposing the motion for a new trial with counter-affidavits. An examination of the appellants’ brief fails to show a copy of the motion for a new trial and also fails to show a copy of the assignment of errors although the argument portion of the brief purports to relate to both of these.

We have examined the motion for a new trial as disclosed by the record, and have considered the argument of the appellants based upon the motion for a new trial. The appellants discuss several propositions in the argument portion of their brief which were not raised in the motion for a new trial and are therefore not before us. The first specification that “the decision of the Court is not sustained by sufficient evidence”, must be considered in light of the test in Heckman v. Heckman (1956), 235 Ind. 472, 134 N. E. 2d 695. We conclude that the evidence is in conflict and that there is sufficient evidence of probative value to support the decision of the trial court.

The second specification proclaims newly discovered evidence and this part of the motion is properly supported by affidavits. A consideration of the argument of appellants in support of this proposition fails to convince us that the evidence discovered would have any bearing on the case other than to test the credibility of the witness, Bertha Bright. This having been a trial by the court without jury, the court necessarily considered the effect of this newly discovered evidence when ruling upon the motion for a new trial. The effect of appellants’ argument fails to meet the requirements that they show an abuse of discretion by the trial court.

In review of the trial court’s decision denying a new trial on the ground of newly discovered evidence, we follow the tests set out in two leading Supreme Court cases. A.S.C. Corporation v. First Nat. Bank, etc. (1960), 241 Ind. 19, 167 N. E. 2d 460, at page 35:

“The trial court here was the sole judge of the credibility of the witnesses, and the weight to be given documentary evidence; and any conflicts in the evidence or any reasonable inferences which might be drawn therefrom, are to be determined and drawn by him.”

N. Y. Central Ry. Co. v. Milhiser (1952), 231 Ind. 180, 106 N. E. 2d 453 at page 189:

“It has been held many times that all reasonable presumptions are indulged on appeal in favor of the rulings and judgments of a trial court, that the record must exhibit the errors for which the reversal is sought, and that a court of appeals will not presume anything in favor of appellant to sustain his alleged error.” (Citations omitted.)

And at page 23, A.S.C. Corporation v. First Nat. Bank, etc., supra:

“The decision of the trial court comes to us clothed with the presumption that a correct result was reached and the burden is upon appellant here to overcome that presumption. Souerdike v. State (1952), 231 Ind. 204, 206, 108 N. E. 2d 136.”

For the reasons herein above set out, the judgment of the trial court is affirmed.

Judgment affirmed. Costs v. appellants.

Lowdermilk, P.J., Cooper and Sullivan, JJ., concur.

Note. — Reported in 251 N. E. 2d 454.