Summary
In Spanier v. Spanier, (1951) 120 Ind. App. 700, 96 N.E.2d 346, a deed was made to the parties as husband and wife when in fact they were not. Citing the Singleton case, the court stated, "The deed to appellant and appellee vested title in them as tenants in common, and, under the evidence submitted by appellant, each owns an undivided one-half of the real estate involved."
Summary of this case from Baker v. ChambersOpinion
No. 18,084.
Filed February 1, 1951.
1. APPEAL — Assignment of Errors — Grounds for Independent Assignment of Errors — May Be Presented by Motion for New Trial. — Errors which constitute grounds for independent assignments of error on appeal may be specified in a motion for new trial as grounds therefor, and an assignment that the trial court overruled said motion is sufficient to raise the question on appeal concerning such errors. Rules of the Supreme Court, 2-6. p. 701.
2. JUDGMENT — Setting Aside or Vacating — Application — Treated as Separate Action When So Required. — Where an application to set aside a judgment is required to be brought by independent action, such application will be so treated notwithstanding the fact that it is entitled as part of the original action and designated as a motion. Burns' 1946 Replacement, § 2-1068. p. 702.
3. APPEARANCE — By Demurrer — Waiver of Failure of Process. — Where a defendant filed a petition to set aside a default judgment in a partition action, plaintiff, by demurring to the petition, waived defendant's failure to obtain service of process. p. 702.
4. APPEAL — Briefs — Failure To Indicate No Evidence Heard in Proceeding To Set Aside Default Judgment — Regularity of Action Presumed. — Where an appellant asserted the trial court erred in setting aside a default judgment without first hearing evidence, but his brief contained nothing to indicate that no evidence was heard, the Appellate Court would presume that the trial court acted regularly. p. 702.
5. EVIDENCE — Demurrer to Evidence — Evidence Not Set Out — Motion for Finding Rather Than Demurrer. — A document filed by the defendant which was designated as a demurrer to the evidence, but which did not set out the evidence of the opposing party, was actually a motion to find for the defendant and would be so treated. p. 703.
6. PLEADING — Motions — Motion for Finding — Effect. — A motion to find for the defendant filed at the close of plaintiff's evidence presents the question as to whether or not the evidence introduced on behalf of the plaintiff, assuming it to be true and considering as proved all facts which the evidence proves or by legitimate inference tends to prove, establishes the plaintiff's case as laid. p. 703.
7. PARTITION — Action — Evidence — Weight and Sufficiency — Sufficient To Prove Tenancy in Common. — In a partition action, the evidence introduced by the plaintiff was sufficient to establish that, while the deed was made to plaintiff and defendant as husband and wife, they were actually not married, so that they each held an undivided one-half of the land as tenants in common rather than holding the whole as joint tenants; therefore plaintiff's case was established as laid, and a motion to find for defendant filed at the close of plaintiff's evidence was improperly sustained. p. 703.
From the Lake Superior Court, Room No. 5, Harold L. Strickland, Judge.
Action by Arthur Spanier against Pauline Spanier for partition of certain real estate. From a judgment for defendant, plaintiff appeals.
Reversed with instructions. By the court in banc.
Earl W. Johnson, of Hammond, for appellant.
Straley Thorpe, of Hammond, for appellee.
Appellant brought this action against appellee for partition, alleging that the parties are tenants in common of certain real estate. From an adverse judgment appellant prosecutes this appeal, claiming error by the court in overruling his motion for a new trial.
At the outset we are met by appellee's contention that no question is presented because the grounds of the motion are such as may only be presented by independent assignments of 1. error. However this may have been formerly, appellee's contention is without merit by reason of Rule 2-6. This rule now provides: "If, in the trial court, a motion for a new trial is filed, each error relied upon, however and whenever arising up to the time of the filing of said motion, may be separately specified therein as a ground therefor, and an assignment of error to the effect that the trial court erred in overruling said motion shall be sufficient to raise said asserted error on appeal."
Appellee defaulted. The cause was submitted and evidence heard. The court found that the parties were each entitled to an undivided one-half interest in the real estate. Commissioners were appointed, who reported that the premises cannot be divided without damage to the owners. The court then found the property to be indivisible and appointed a commissioner to sell the same at private sale.
Thereafter, apparently at a later term of court, appellee appeared and filed her verified petition to set aside the findings and proceedings. Appellant's demurrer to this 2, 3. petition was overruled, and this ruling is challenged. Appellant says the petition or application is required by the statute, § 2-1068, Burns' 1946 Replacement, to be by complaint filed and notice issued as in original actions. "However, this court has held that where an application to set aside a judgment is required to be by independent action, it will be so treated notwithstanding it is entitled as part of the original action and designated as a motion." Gilmer v. Hurst (1946), 117 Ind. App. 102, 69 N.E.2d 608, citing Vail v. Dept. of Financial Institutions (1938), 106 Ind. App. 39, 17 N.E.2d 854. When appellant filed his demurrer to the petition he thereby waived the failure of process. Gilmer v. Hurst, supra.
Appellant asserts that the court erred in setting aside the default judgment without first hearing evidence. We find nothing in appellant's brief which indicates that no evidence was 4. heard, and therefore presume that the court acted regularly.
After various pleadings were filed the cause was submitted to trial on appellant's complaint. At the conclusion of appellant's evidence appellee filed what she designates as a demurrer to the evidence, asking that the court find for the appellee. The court made an entry that the demurrer was sustained, found for appellee and entered judgment that appellant take nothing by his complaint; that appellee recover her costs herein. This action is challenged as error.
While the document is designated a demurrer to the evidence it is obviously not that. It does not set out appellant's 5. evidence. Rather it is a motion to find for appellee, and must be so treated.
This motion presents the question as to whether or not the evidence introduced on behalf of appellant, assuming it to be true, and considering as proved all facts which the 6. evidence proves, or by legitimate inference tends to prove, establishes the appellant's case as laid. Abernathy v. McCoy (1926), 91 Ind. App. 574, 154 N.E. 682; Smith v. Switzer (1933), 205 Ind. 404, 186 N.E. 764; Campbell v. Githens (1932), 94 Ind. App. 681, 182 N.E. 100.
There was evidence establishing or tending to establish 7. the following facts:
On May 19, 1947, the Central Construction Corporation made its warranty deed "to Arthur John Spanier (appellant) and Pauline Spanier (appellee), husband and wife."
Thereafter appellee filed suit against appellant for an absolute divorce. This cause was tried and the court found and adjudged "that the defendant, Arthur Spanier, prevail in this action; that the plaintiff, Pauline Spanier, is not entitled to a decree of absolute divorce of and from the defendant, Arthur Spanier; that the plaintiff and defendant's relationship did not constitute a common law marriage;"
From a reading of all the evidence, and assuming it to be true, and considering the legitimate inferences which arise therefrom, it is shown that a deed was made to appellant and appellee as husband and wife when they were not in fact such.
Appellee, to uphold the action of the trial court in sustaining the motion to find for her, claims that appellant pleads a legal title in his complaint; there was no evidence to support such a title; that appellant's evidence showed an equitable title, if any; that this was more than a mere variance and amounted to a failure of proof. We cannot agree with appellee. The evidence establishes the appellant's case as laid. The deed to appellant and appellee vested title in them as tenants in common, and, under the evidence submitted by appellant, each owns an undivided one-half interest in the real estate involved. Singleton v. Cushman (1947), 117 Ind. App. 183, 70 N.E.2d 642.
It follows that the court erred in sustaining appellee's motion and making a finding for appellee.
Judgment reversed, with instruction to sustain appellant's motion for a new trial.
NOTE. — Reported in 96 N.E.2d 346.