164 Ind. 376 | Ind. | 1905
This action was brought by appellee to recover for loss by fire of certain personal property, including household goods, wearing apparel, etc., which were insured by appellant. A trial of said cause resulted in a verdict, and, over a motion for a new trial, a judgment in favor of appellee.
The errors assigned call in question the action of the court in overruling the demurrer to the complaint and the motion for a new trial.
Appellant insists that the complaint is insufficient because of the omission of each of the following allegations: (1) That proofs of loss were furnished according to the requirements of the policy; (2) a compliance by appellee with all the requirements of the policy; (3) appellee’s ownership of the property destroyed by fire at the date of the policy and the time of the fire; (4) the value thereof at the time it was burned; (5) identification as an exhibit of the adjuster’s agreement mentioned in the complaint as “being made a part hereof and attached hereto.”
1. The complaint is copied into the transcript of the proceedings of the court below, and immediately following the complaint a copy of the insurance policy and the adjuster’s agreement are copied into the transcript in the order named. It is alleged in the complaint that said adjuster’s agreement is “made a part hereof and attached hereto'.” This was sufficient to make said agreement a part of the complaint under §365 Burns 1901, §362 R. S. 1881 and Horner 1901. Thompson v. Recht (1902), 158 Ind. 302. This disposes of the fifth objection.
3. It appears from the complaint by direct averments that the property described in the insurance policy issued to her by appellant was her property when the same was insured, and that “while said policy was still in force and effect, and while said property insured as aforesaid was contained in said dwelling, and .was the property of plaintiff, a fire occurred in said dwelling.in which certain articles of said property belonging to plaintiff and covered by said policy of insurance were damaged to the extent of over $600.” The averments in regard to appellee’s owning the property were sufficient to withstand the demurrer for want of facts. Aurora Fire Ins. Co. v. Johnson (1874), 46 Ind. 315, 321-323; Phoenix Ins. Co. v. Benton (1882), 87 Ind. 132-134.'
4. It is alleged in the complaint that immediately after the first notice of the loss was given to appellant it sent its “agent and adjuster, who made investigation as to the origin of the fire and the amount of the loss and damage sustained by plaintiff by reason .thereof, and thereupon this plaintiff and said defendant, through its said adjuster and agent, under the terms and provisions of said policy,, entered into an ascertainment or estimate of the amount of the loss sustained by plaintiff, which amount was agreed upon by plaintiff and said defendant as being $545.57; * * * that thereafter, as was the right of said defendant under said policy, said defendant caused plaintiff to be examined under oath touching the origin and cause of said fire, the ownership of plaintiff in such goods, and was at liberty to and did ask plaintiff, under oath, such questions
The adjuster’s agreement, made a part of the complaint, and which was signed by appellant and by appellee, stipulated that appellee’s loss and damage by fire is, after a full examination, agreed upon and. determined by compromise at the sum of $545.57, and said sum as agreed is binding and conclusive upon the parties “as to the amount of the loss and damage.” This, when considered in connection with the allegations in the complaint, renders unnecessary any further allegation in regard to the value of the property at
5. It was assigned as a cause for a new trial that the “court erred in refusing to permit the defendant to file a second paragraph of answer, alleging fraud, which refusal of the court was an abuse of discretion.” There are two reasons why this specification presents no question: (1) When the court refused the permission to file said paragraph on November 19, 1902, ten days were given in which tO' file a bill of exceptions. The bill of exceptions containing said ruling, the exception, and the paragraph of answer tendered were not presented to the judge for signature until the next term of said court on December 4, 1902, on which day it was signed and filed. This was after the ten days given by the court had expired, and said bill of exceptions is not, therefore, a part of the record and can not be considered.
6. ( 2 ) Said ruling of the court in refusing permission to file said paragraph of answer was not a cause for a new trial, but could only be presented by an independent assignment of error on appeal. Langsdale v. Woollen (1885), 99 Ind. 575, 586, 587; Hedrick v. Whitehorn (1896), 145 Ind. 642; Pouder v. Tate (1892), 132 Ind. 327, 329; Standard Oil Co. v. Bowker (1895), 141 Ind. 12, 13; Elliott, App. Proc., §§34-7, 348.
7. The other causes assigned for a new trial urged by appellant depend for their determination upon the evidence', which appellee insists is not in the record, for the reason that the same wras presented to- the trial judge for settlement and signature after the expiration of the sixty days given by the court when the motion for a new trial was overruled, and what purports to be an order of the court extending the time made at the next term of the court was without authority and void. It appears from the transcript that this cause was tried, verdict returned, and motion for a new trial filed at the November term, 1902, of said court.
Judgment affirmed.