66 Ind. App. 393 | Ind. Ct. App. | 1918
— This is an appeal from a judgment of the Marion Superior Court in appellee’s favor in an action in replevin begun by appellant before a justice of the peace for the recovery of certain counters, bins, etc., alleged to be the property of the plaintiff. There was a trial by the court, with a special finding of facts and conclusions of law. A motion for new trial -filed by appellant was overruled. The errors assigned and relied on for reversal challenge (1) “the conclusions of law stated upon the finding of facts,” and (2) the ruling on said motion. The motion for new trial contains seven separate grounds. Under the heading “Points and Authorities” in appellant’s briefs, “propositions” num-' bered from-1 to 6, inclusive, are stated.
It follows that no question is presented by said propositions unless the court can say that the particular wording of one or more of them is such as to indicate with sufficient certainty the ruling to which it is intended to apply, in which case the court may
“Proposition 1. The term ‘fixtures’ ordinarily is construed to mean articles annexed to the realty unless it appears to have been intended to have some other meaning. In the divorce decree between Yirdie Smith and Alvie O. Smith, the defendant herein, it clearly appe,ars that the word ‘fixture’ was meant to apply to the store appliances of Alvie O. Smith which were not a part of the realty then owned and mortgaged by Alvie O. Smith and Yirdie Smith, as tenants by the entireties.
“Proposition 2. Trade fixtures, attached to the realty, upon a conveyance of the realty, in the absence of an express reservation, pass to the vendee.
“Proposition 3. The counters, shelves, bins and screen doors, having been placed in and attached to the storeroom by the owners to" enable them to use or rent it to a better advantage, and being essential for the purpose for which the building was used, became a part of the realty upon a conveyance to the vendee.
“Proposition 4. Alvie O. Smith, abandoned his lease of said storeroom at the time he sold his undivided one-half interest therein, continued in possession and accepted a new lease thereof from Mary B. Daily, in which no provision was made for the removal of the fixtures attached to the building and thereby abandoned his right thereto.
“Proposition 5. The failure of the court to set out in his special finding of facts the lease, introduced in evidence by the plaintiff, or to find that the defendant, Alvie O. Smith, did not reserve at the time of the execution of the new*397 lease the right to remove any of the fixtures then attached to the building at the expiration of said lease, or to find any other material fact, was error.
“Proposition 6. Failure of the court to find facts correctly is cause for a new trial.”
It follows, therefore, that no error is presented by either of said grounds of the motion for new trial to which we assumed that propositions Nos. 5 and 6 were intended to be addressed;
We do not think there is anything in either of the other propositions, supra, from which the court can say whether they are addressed to the conclusions of law or to one or the other of those grounds of the
It will be observed that there is a general conclusion that the law is with the defendant. If this part of the conclusion of law be correct, no prejudicial error is presented by what follows; that is to say, if the facts found are sufficient to support the conclusion of law upon which the judgment is based, no prejudicial error resulted from a conclusion of law unnecessary to the support of such judgment. Hill v. Swihart (1897), 148 Ind. 319, 324, 47 N. E. 705; White v. Chicago, etc., R. Co. (1890), 122 Ind. 317, 330, 331, 23 N. E. 782, 7 L. R. A. 257.
As the finding comes to us, we cannot say that there is error in the conclusion of law. The judgment is therefore affirmed.
NoTE.-'-Reported in 118 N. E. 312.