129 Ind. 576 | Ind. | 1891
The complaint by the appellees in this action was to set aside the conveyance of real estate described therein alleged to have been fraudulently made to appellants by one Kasper Hartlepp, who was a co-defendant in the court below. The cause was tried by the court without a jury, and the court, at the request of appellants, made a special finding of facts, and stated conclusions of law thereon. The appellant excepted to the conclusions of law, as stated by the court.
The appellants also moved the court for a judgment in their favor on the special finding of facts, which was overruled, exceptions reserved by appellant, and judgment rendered for the appellees.
The court sought to remedy the defect in the finding some days after the rendition of the judgment. The appellees, the plaintiffs below, appeared in court and moved the •court to amend the special finding “ by finding whether or not said defendant Kasper Hartlepp had any property subject to execution other than the lands described in the complaint, from the time of said conveyances to the time of beginning this action/’ The court sustained the motion and made a finding that Hartlepp had no property other than the land subject to execution at the time of the conveyance, nor at any time thereafter up to the commencement of this action, and stated that such finding was made from the evidence, and ordered that it be entered of the day of the trial, and that it should have the same effect as if made at the day of the trial along with the other findings. This latter action of the court was clearly of no effect. The court can not amend and supply defects in a special finding on motion of one of the parties to a suit after the rendition of the judgment, even if it could do so before judgment. In the case
In the opinion of the court justice will be best subserved by the granting of a new trial.
Judgment reversed at costs of appellees, with instructions to the court below to set aside the judgment and grant a new trial.
Supplemental Opinion.
Olds, J. — In the original opinion we only made a statement showing the controverted question presented for decision, and it should have been more explicit. The appellees, Whiteley, Fassler and Kelley, and James McCabe, joined in the action as plaintiffs, alleging and showing that Whiteley, Fassler and Kelley had a judgment against Kasper Hartlepp which was unsatisfied, and that McCabe held a note executed by said Kasper Hartlepp to him for $145, due September 1st, 1885, with eight per cent, interest and attorney’s fees, and alleging facts showing a fraudulent conveyance and transfer by Kasper Hartlepp of his real estate, and asking judgment in favor of McCabe on his note, and to have the fraudulent conveyance set aside and the land subjected to the payments of the Whiteley, Fassler and Kelley judgment, and the judgment of McCabe.
The facts found show McCabe entitled to his judgment, and judgment was rendered in his favor. The personal judgment in favor of McCabe was authorized by the findings of fact, and should not be set aside, but the judgment setting aside the conveyance by Kasper Hartlepp to James Hartlepp should be set aside.
The mandate of the original opinion is, therefore, hereby modified, and the personal judgment in favor of James Me