Opinion
No. 17,513.
Filed June 17, 1946. Rehearing Denied October 4, 1946. Petition to Withdraw Petition to Transfer Granted November 22, 1946.
1. APPEAL — Evidence — Admission of Evidence — Objection to Question to be Set Out in Motion for New Trial. — Where defendants did not set out in their motion for new trial the objection, or the substance thereof, to a question eliciting testimony from a witness, no question was presented for review concerning the admission of such testimony. p. 108.
2. APPEAL — Presentation in Lower Court of Grounds of Review — Motion For New Trial — Objections to Testimony Not Set Out. — Alleged error of the trial court in refusing to permit one of defendants' witnesses to answer certain questions put to him was not presented for review, where the objections made to the questions were neither set out nor summarized in the motion for new trial, and such motion did not indicate whether an offer to prove was made, or if it was made, the substance of such offer. p. 109.
3. APPEAL — Evidence — Sufficiency — Conflicting Evidence Not Weighed. — A finding of the trial court based on conflicting evidence cannot be disturbed on appeal. p. 109.
4. APPEAL — Harmless Error — Error Not Affecting Defendants Not Available on Appeal. — Where a circuit court decided upon sufficient evidence that defendants had no right, title or interest in and to restaurant property in which they asserted an interest and awarded possession thereof to an administratrix who claimed such property as an asset of the estate, a further order of the court directing the administratrix to operate the restaurant under its own orders, even if erroneous, because the jurisdiction in that regard was vested in the probate court wherein the estate was being administered, was not harmful or prejudicial to defendants. p. 109.
From the Marion Circuit Court; Floyd R. Mannon, Special Judge.
Action by Maude A. Nixon, administratrix of the estate of Thomas T. Fullbright, deceased, against Lela Morris and others for the appointment of a receiver to take possession of certain property which allegedly constituted assets of the estate, to operate the business in which the property was being used, for an accounting, and for the delivery of the property to plaintiff. From a judgment for plaintiff, defendant appealed.
Affirmed. By the court in banc.
Faust, Faust Faust, of Indianapolis, for appellant.
Bingham, Cook Bingham, and Claude M. Spilman, all of Indianapolis, for appellee.
In her capacity as administratrix of the estate of Thomas T. Fullbright, deceased, the appellee brought this action against the appellants, alleging that Fullbright died the owner of certain restaurant equipment which constituted assets of the estate, but that the appellants were asserting an adverse interest therein and retaining the possession thereof to the exclusion of the appellee. She prayed for the appointment of a receiver to take possession of the property and to operate the business. She also prayed for an accounting and the delivery of said property to her.
The complaint was not tested by demurrer or motion. By their separate answers the appellant Davidson claimed ownership of said property and the right to possession thereof; the appellant Morris claimed an interest as lessee from Davidson and the appellant Krieger disclaimed.
The court found for the appellee that the property belonged to the decedent at the time of his death and that it constituted an asset of his estate. Possession was awarded to the appellee as administratrix, and in that capacity she was ordered to operate the restaurant business under the orders of the court. No receiver was appointed.
All of appellants' contentions can be disposed of by considering their motion for new trial, the overruling of which is assigned as error here.
Two of the specifications in the motion relate to the admission of evidence over the appellants' objection. In neither instance do the appellants in their motion for new trial set out the 1. objection made to the question, nor the substance thereof. Therefore, no question is presented. Moorman Mfg. Co. v. Keller (1934), 98 Ind. App. 607, 184 N.E. 913; Cooper v. Cooper (1943), 114 Ind. App. 261, 51 N.E.2d 100; David v. David (1946), 116 Ind. App. 603, 66 N.E.2d 284.
One specification relates to the refusal of the court to permit one of appellants' witnesses to answer certain questions put to him by appellants. The objections to these questions are 2. neither set out nor summarized in the motion for new trial, nor does the motion indicate whether any offer to prove was made or if made, the substance of such offer. For aught disclosed by the motion, the witness, if permitted to answer these questions, would have testified that he had no knowledge or information upon the subject, or his answer might have been harmful to the appellants. In this state of the record this specification presents no question.
The appellants question the sufficiency of the evidence to sustain a finding of ownership in Fullbright at the time of his death. The evidence on this subject, which consisted of the 3. testimony of several witnesses and the introduction of a number of exhibits, presented a conflict which the trial court resolved in favor of the appellee. We are not at liberty to disturb this finding.
The appellants further complain that the Circuit Court erred in directing the appellee to operate the restaurant under its own orders, on the theory that such operation is an 4. administrative duty and that jurisdiction in regard to it is vested solely in the Probate Court, which court appointed appellee administratrix.
But the Circuit Court decided, upon sufficient evidence, that the appellants had no right, title or interest in and to said property, and awarded possession thereof to the appellee. Its further order with reference to the manner in which, and the conditions under which the appellee should thereafter keep and use said property, could not in this case be harmful or prejudicial to the appellants, whether erroneous or not, and no one else is complaining.
Finding no error, the judgment is affirmed.
Royse, J. not participating.
NOTE. — Reported in 67 N.E.2d 319.