84 Ind. 212 | Ind. | 1882
At the April term, 1879, of the court b'elow,
The appellants’ motion for a new trial having been overruled, and their exception entered to this decision, on the day last named, they prayed an appeal to the Supreme Court, which was granted upon their filing an appeal bond within sixty days, in the penal sum of $200, and with George Wilson as surety therein, which bond and surety were approved by the court. On the 15th day of May, 1880, and within the time allowed by the court, the appellants filed such appeal bond, and on the
To the assignment of errors the appellee has pleaded specially, as follows:
“ The said appellee for answer says that the said Supreme Court has no jurisdiction of shid appeal, for the reason that said appeal was not taken in the time or manner prescribed by sections 189 and 190 of the act for the settlement of decedents’ estates, under which act the said proceedings were had; and she therefore asks that said appeal shall be dismissed.”
The appellee has also moved the court in writing to dismiss the appeal in this case, for the following reasons:
“ 1. That said appeal 'was not taken in the time or in the manner prescribed by law;
“ 2. That no appeal bond was filed within thirty days after the decision complained of was made; and,
“ 3. That no appeal bond was filed with the clerk of the Union Circuit Court, with penalty in double the sum in controversy, as required by law.”
Substantially the same questions are presented for decision by the appellee’s plea above quoted,and by her motion to dismiss this appeal, and, therefore, they may be properly considered together. Doubtless, these questions depend for their proper decision upon the provisions of the act of June 17th, 1852, providing for the settlement of decedents’ estates; for it is manifest, from our statement of this case, that it was, begun, prosecuted and decided below, pursuant to the provisions of that act, and of no other statute. In such a case we have repeatedly decided, and adhere to the decision, that an appeal to this court.must be taken in conformity with the requirements of the act in question, in regard to such an appeal, and can not be taken otherwise. Seward v. Clark, 67. Ind. 289; Bell v. Mousset, 71 Ind. 347; West v. Cavins, 74 Ind. 265. In the cases cited the appeals were taken by parties to the
In the case at bar, as we have seen, the appeal was taken by the executors of the decedent. In such an appeal sections 189 and 190 of the act of June 17th, 1852, must be construed in connection w-ith section 193 of the same act; which latter ■section provided that in any appeal prayed for by an executor •or administrator, from the decision of any court, it should not be necessary for such person to file an appeal bond. 2 R. S. 1876, p. 557; section 2457, R. S. 1881. Section 193 did not require, nor did it authorize the court to require, that the appellants, upon taking their appeal, should file any appeal bond in any specified penalty, or within any limited time. On the contrary, the section provided in express terms that it should not be necessary for the appellants, as executors, to file any appeal bond in taking their appeal. In discussing the point now under consideration, the appellee’s counsel says:
“ It may possibly be claimed that the appellants were exempted from the requirement of giving bond by the provisions of section 193 of the same act. But, it must be evident, that section was intended to and can only apply to cases where*216 the executor is acting in his representative capacity, on behalf and for the protection of the interests of the estate, and' not, as in this case, where the finding and judgment are-against him personally.”
This argument of counsel is ingenious and specious, but it is not well founded, either in law or in fact. The form of' the judgment in this case, as shown by the record, is as follows : “ It is therefore ordered by the court, that the said' Jacob Bake ■ and Samuel Bake, as executors, do pay to the said Anna M. Smiley,” etc. Certainly that is not a personal judgment, either in form or substance. It constitutes no lien on the real estate of the appellants, and its collection could' not be enforced by an ordinary execution. It is such a judgment, however, as a court of probate jurisdiction is authorized by law to render, if the facts will warrant it, and to-enforce against the person of the executor or administrator,,, who is in a qualified sense an officer of such court, and subject to its orders. If the appellee’s judgment, in this case,, were a personal judgment against the appellants, the rules-governing their appeal therefrom would be those prescribed in the civil code of 1852; and, under those rules, their appeal from such judgment would have been perfected when-they had filed, as they had, a transcript of the record thereof in the office of the clerk of this court, within one year from the rendition of the judgment. Rusk v. Gray, 74 Ind. 231; Willson v. Binford, 74 Ind. 424.
For the reasons given, we are of the opinion that the appellee’s answer to the assignment of errors is not sufficient in-law to entitle her to the dismissal of the appeal in this cause,, and that her motion to dismiss such appeal must be overruled.
The following decisions of the trial court are assigned as-errors by the appellants:
1. In overruling their motion for a new trial.
2. “ In the conclusions of law arrived at upon the facts-stated in the record.”
4. “ In its conclusions of law upon the facts found by the-court in this causé.”
The second and fourth of these alleged errors are substantially the same, differing only and but slightly, each from the other, in their verbiage. These supposed errors are not apparent in the record of this cause. The court did not, at the request of either party, make a special finding of faots and state the conclusions of law thereon; nor was any such finding signed by the judge, or made part of the record by a bill of exceptions or by an order of court. The finding of the court in this case, therefore, can only be regarded as a general finding in favor of the appellee. Conwell v. Clifford, 45 Ind. 392; Caress v. Foster, 62 Ind. 145; Smith v. Talman, 71 Ind. 171. It is clear, therefore, that the second and fourth errors assigned by appellants present no question for our decision.
The third alleged error is that the trial court erred in admitting evidence offered by appellee, over the appellants' objections. This was an error of law occurring at the trial, and, if excepted to and made specific, it might have constituted a good cause for a new trial in a motion therefor addressed to the circuit court. But causes for a new trial can not be properly assigned as errors, and if so assigned they present no question for the decision of this court. Freeze v. DePuy, 57 Ind. 188; Walls v. Anderson, etc., R. R. Co., 60 Ind. 56; Fisher v. State, ex rel., 65 Ind. 51; Hyatt v. Mattingly, 68 Ind. 271.
The only remaining error assigned by the appellants is the decision of the circuit court in overruling their motion for a new trial. In this motion fourteen causes were assigned for such new trial. Of these, the fourth, fifth, sixth, seventh, eighth and’ ninth causes are, each of them, that the court erred in sustaining the appellee's objections to the questions set out therein, propounded by the appellants on the trial to the wit
So, also, in Mitchell v. Chambers, 55 Ind. 289, it was said : “Where a party may wish to avail himself, in this court, of an alleged error of the. court below, in the exclusion of offered evidence, it is due to both the courts, that the record should "show, clearly and explicitly, and without any necessity for inference or surmise, what evidence was offered and excluded, and what facts it was intended to establish thereby. Where, as in this case, the record shows only that certain questions were propounded to certain witnesses, and does not show the particular evidence which it was expected would be elicited by the answers to such questions, we can not say from the record that the court below erred in sustaining the objections to such questions. The Toledo, etc., R. W. Co. v. Goddard, 25 Ind. 185; Lewis v. Lewis, 30 Ind. 257.” See, also, to the same effect, the case of Jordan v. D’Heur, 71 Ind. 199. It follows, therefore, that the causes for a new trial last enumerated do not, nor does either one of them, present any question for the decision of this court.
The eleventh and twelfth causes for a new trial were errors of the court in permitting the appellee to ask one of her witnesses, and, over appellants’ objections, allowing the witness to answer certain questions in regard to the statements of the appellant Samuel Bake about the condition and solvency of his testator’s estate, and the ability of the estate to pay all its debts in full, including the debt to appellee’s intestate. These questions were objected to by the appellants, upon the general ground that they were “ illegal, irrelevant and impertinent.” Ho specific objection seems to have been made to the form or substance of either of the questions, and we fail to see that either of them can be regarded as illegal, although we are not strongly impressed with their relevancy or pertinence. Samuel Bake had previously testified on behalf of the appellants, and, on his cross-examination by the appellee, he had denied making the statements to the witness mentioned in the questions objected to. These questions were asked the witness by appellee in rebuttal, and the court did not err, we think, in permitting the witness to answer them.
The third, thirteenth and fourteenth causes for a new trial are not alluded to in argument by the appellants’ counsel, and are regarded as waived.
The only remaining causes for a new trial yet to be considered are the first and second, namely: that the finding of the court was contrary to law, and that it was not sustained by sufficient evidence. Before considering the causes for a new trial, it is proper that we should give a fuller statement than we have hitherto given of the principal matter in controversy between the parties in this case.
In her first written objection to the appellants’ final report
In their special answer to said first objection, the appellants admitted the recovery by appellee’s intestate of the judgment mentioned therein, but they said that the same was recovered upon a partnership debt due and owing at the date thereof from the firm of Smith, Dubois & Co., the firm consisting,, when the debt was contracted, of Thomas B. Smith, Hazel N.. Dubois and Jesse Smith, then in life but since deceased; and the appellants averred that said judgment was a partnership debt, and could not by them be lawfully paid out of the funds of said estate until the individual debts of said estate had all been fully paid; that no assets of said firm of Smith, Dubois & Co. had ever come into the appellants’ hands wherewith to pay said judgment, or any part thereof, and that the individual assets of said estate were wholly exhausted and paid by appellants upon the individual debts of their testator, as shown by their reports on file and upon the expenses of the administration of said testator’s estate. Wherefore the appellants asked for the approval of their final report, and for their discharge as such executors.
Upon this special answer the appellee joined issue by a reply in general denial.
It will be readily seen from the allegations of their special answer, that the appellants intended therein and thereby to defend themselves from any accountability or liability to the appellee upon the judgment described in her first written ob
The appellants had the burden of the issue joined on their •special answer; and it devolved on them to show, by a fair preponderance of the evidence, first, that the appellee’s judgment was a partnership, and not an individual, debt of their testator, and, secondly, if it was a partnership debt, that they had received only the individual assets of their testator and had lawfully exhausted the. same in the payment of the expenses of administration and of the individual debts of the testator, leaving no surplus whatever of such assets for distribution to his partnership creditors. As we have already .said, the trial court made a general finding upon the issues joined in favor of the appellee and against the appellants, and ¡assessing the amount of appellee’s recovery. In their motion for a new trial the appellants did not assign, as cause therefor, •either that the damages were excessive or that the court had •erred in assessing the amount of appellee’s recovery. Therefore, as we have often decided, there is no question before us in relation to excessive damages, or to any supposed error in the assessment of the amount of recovery. Spurrier v. Briggs, 17 Ind. 529; Floyd v. Maddux, 68 Ind. 124; Hyatt v. Mattingly, 68 Ind. 271; Warner v. Curran, 75 Ind. 309; Douch v. Bliss, 80 Ind. 316.
The single question presented for our decision by the first and second causes for a new trial is this: Is there legal evi
There is not one word, either in the finding or judgment, from which it might be even inferred that the judgment was rendered upon a partnership debt, or that it was to be paid out of any partnership assets. On the contrary, with the appellants there present, and without any objection or exception on their part, the court adjudged that the a2 pellee’s intestate should recover his debt of the estate of the testator, that had or might come into the hands of the appellants, as such executors. In their special answer the appellants alleged that no< partnership estate of their testator had ever, that is, at or before the rendition of said judgment, or at any other time, come into their hands as such executors. Are not the appellants estopped and concluded, by the judgment of appellee’s intestate against them, from asserting or claiming that such judg
We have found no error in the record which would author- . ize the reversal of the judgment below.
The judgment is affirmed, with costs.
