61 Ind. App. 614 | Ind. Ct. App. | 1916
Appellant brought this action to partition real estate in Dubois County, Indiana, and alleged that he was the owner in fee of the undivided two-sevenths part of the real estate, and that appellee, Joseph Sehnaus, was the owner of the undivided five-sevenths part thereof. Anna D. Sehnaus, wife of her coappellee was made a party to answer to any interest she might have in the real estate. . By their answer appellees admit that the real estate is owned in the proportions alleged in the complaint and that Anna D. Sehnaus is the wife of her coappellee and has no interest in the real estate other than her marital rights. ' It is alleged in both complaint and answer that the real estáte may be partitioned and that commissioners should be appointed to set off to each his respective portion in severalty. Commissioners were appointed and made their report to the court. Appellant filed exceptions to the report which were overruled by the court and the report was thereupon approved and the partition confirmed.
The complaint describes the real estate by congressional survey, “containing 80 acres more or less”. The court found the interest as alleged and ordered that there be set off to Jacob Burger two-sevenths in value of the real estate and to Joseph Schnaus, five-sevenths in value thereof. On June 27, 1913, the record shows that each party appeared by attorneys and the commissioners filed and acknowledged their report in open court, which report bore date of June 18, 1913. Thereupon, appellant on said day, filed his written objections to the report and asked that it be not confirmed. Following this entry the record shows that “the court now continues the further consideration of said report until the next term of court.” As a part of the proceedings of the same day, June
While the second report appears in the proceedings of June 27, it shows by its contents that it was not made until June 28. The second report was on file and before the court when the trial was had on the exceptions and it is the report on which the judgment of partition rests. While not so designated, the second report is in the nature of an amended report and supersedes the first. The exceptions were not filed or directed to the second report, but if we waive this and the other objections pointed out and consider the exceptions as presenting the question sought to be raised thereby, appellant has nevertheless failed to present reversible error.
The trial court gave a wide range to the trial and deprived appellant of no substantial right. No error was committed in overruling the motion for a new trial on the exceptions to the commissioners’ report. Our examination of the case convinces us that no reversible error is shown on any view that may be taken of the record. The value of the land was taken into account and the commissioners’set off to appellant the amount of land they found to equal two-sevenths in value of the whole tract. Judgment affirmed;
Note. — Reported in 112 N. E. 246. As to parties to suits for partition, see 114 Am. St. 80. As to allowance of attorney fees in. partition proceedings, see 12 Ann. Cas. 854.