DeHaven v. DeHaven

46 Ind. 296 | Ind. | 1874

Downey, J.

This was a petition for the partition of certain real estate situated in Fayette county, filed by John H. DeHaven, Nancy A. DeHaven, Christopher DeHaven, her husband, Nancy Wooters, Isaac Stockdale, John Stockdale, and Elbert Stockdale, against Isaac DeHaven, Jacob DeHaven, and James S. DeHaven. It is alleged that William DeHaven died in 1871, intestate, the owner in fee simple of the real estate; that he died without leaving any issue, or widow; that he left, as his heirs at law, Isaac DePIaven, his father, who, by law, is the owner of one-half of said real ■estate, and brothers and sisters as follows : John H. DeHaven •and Nancy A. DeHaven, only representatives of Elizabeth DeHaven, deceased, a sister of said deceased, complainants herein, and Jacob DeHaven and James J. DeHaven, who .are made defendants hereto; that the complainants, Nancy Wooters, Isaac Stockdale, John Stockdale, and Elbert Stock-dale are children and representatives of Sarah A. Stockdale, who was a sister of said deceased, and died before his decease. 'They therefore allege that said John H. DeHaven, Nancy A. DeHaven, James J. DeHaven, and Jacob DeHaven are ■each the owner in fee simple of one-fifth of one-half of said real estate, and that the said Nancy Wooters, Isaac Stock-dale, John Stockdale, and Elbert Stockdale together own in •common one-fifth of one-half thereof. Prayer that partition be made, and that the shares of John H. DePIaven and Nancy A. DePIaven be set off to them in severalty, and that the shares of said Nancy Wooters, Isaac Stockdale, John ■Stockdale, and Elbert Stockdale be set off to them in one ¡body. No question is made as to the sufficiency of the ¡petition.

The first question presented is as to the sufficiency of the •second and third paragraphs of the answers of the defendants. The second paragraph alleges facts which controvert ■the right of Nancy A. DeHaven to have a share of the real estate. It clearly puts in issue nothing not in issue by the ;general denial which was filed, and for this reason we shall not determine the question whether it was sufficient or not.

The question as to the sufficiency of the third paragraph •of the answer is expressly waived by counsel for the appellants in their brief, and it need not therefore be considered.

Upon a trial by the court, there was a finding in accordance with the facts stated in the petition, a motion for a new trial, made by the defendant, overruled, and judgment ren•dered for partition. Time was given the defendants “till ¡next term ” to file their bill of exceptions.

On the second day of the next term, the commissioners reported the partition, to which exceptions were filed, and among them one disputing the heirship or right of Nancy A. DeHaven. This exception was stricken out by the-court.

The plaintiff replied to the exceptions by a general denial..

The court confirmed the partition as made by the commissioners on the sixth day of the term, and the defendants then filed their bill of exceptions.

The remaining question is as to the sufficiency of the 'evidence to justify the finding of the court, its insufficiency having been urged as a reason for a new trial.

But here we are met by an objection, which arises in the record, to the consideration of this question. The record shows, as we have seen, that time was given till the next term in which to file the bill of exceptions containing the-evidence, and that it was not filed until the sixth day of the-next term. “ Till the next term of the court” did not include the time during the next term, nor any part of it. Newby v. Rogers, 40 Irid. 9. Hence, the bill of exceptions was not filed within the time given, and cannot be regarded as in the record for any purpose.

An exception must be taken at the time the decision is made; but time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the court. 2 G. & H. 209, sec. 343.

The judgment is affirmed, with costs.