Fitch v. Gundrum

69 Ind. App. 572 | Ind. Ct. App. | 1919

McMahan, J.

This was an action on- a contract, wherein appellee, a real estate agent, had a contract ■with the owner of a tract of land situated in the State of Michigan to undertake the sale of said land, and to receive as his compensation all that he should sell it for above $7,000.

The appellants are partners in the business of buying and selling real estate. The appellee employed appellants to aid and assist in the selling of said land, the parties agreeing to work jointly and to share the profits equally. Arrangements were made whereby the title of said real estate was put in the name of one of the appellants, and it was afterwards sold by appellants for $10,000. This action was commenced in the Allen Circuit Court by appellee to recover his share of the profits. The cause was tried in the Dekalb Circuit Court by a jury, and resulted in a verdict and judgment for the appellee of $1,500.

Appellants filed a motion to strike out the judgment: (1) Because the court had no jurisdiction, and' because the record did not show that an affidavit had been filed for a change of venue from Allen county; and (2) for the reason that the complaint was for an accounting, and not triable by jury.

1-3. The circuit court is a court of general jurisdiction, and the burden is on the appellants to show want of jurisdiction. The venue might have been changed by agreement. The appellants having-appeared in the Dekalb Circuit Court without questioning- the jurisdiction of the court, it is too late to take advantage of want of jurisdiction after trial. • No objection was made to the cause being tried by a jury. The court' properly overruled this motion.

4. Appellant complains of the fourth instruction given by the court. The part about which complaint is made is that the court in this instruction told the jury that, if the appellants sold the -real estate to a third party for a named consideration, of $10,000, and if there was no other evidence as to the consideration for such sale except the consideration named in the deed, they were at liberty t'o assume that the consideration named in the deed was the real consideration. There was no error in giving this • instruction. Stauffer v. Martin (1909), 43 Ind. App. 675, 88 N. E. 363.

5-6. Complaint is made because the court refused to give instructions Nos. 2 and 4 tendered by appellants. No. 2 was covered by an instruction which the court gave on its own motion. The correctness of No. 4 depends on the evidence, which is not in the record, so we are not able to say it was not correctly refused.

Judgment affirmed.