65 Ind. 255 | Ind. | 1879
At the March term, 1877, of the Shelby Circuit Court, the appellant, Thomas Heaton, filed in open court his petition, duly verified, wherein he alleged, in substance, that, on th.e 25th day of October, 1873, a judgment was rendered in said court, against him for costs, in a suit by him against the executors of the estate of Ephraim Knowlton, late of Shelby county, deceased, to wit, Stephen Knowlton and Christian Mohr; that from said judgment the appellant took an appeal to this' court, to which appeal the appellees appeared and filed their brief therein ; that, at the November term, 1876, of this court.
The appellees appeared to the appellant’s petition, and
To the second paragraph of said answer the appellant demurred, upon the ground that it did not state facts sufficient to constitute a defence to his petition, which demurrer was overruled by the court, and to this ruling he excepted.
The appellant moved the court to strike out certain specified parts of said second paragraph of answer, which motion was overruled, and he excepted to this decision, and filed his bill of exceptions. He then replied, in two paragraphs, to the second paragraph of said answer.
The issues joined were tried by the court without a jury, and a finding was made for the appellees, denying the prayer of the appellant’s petition, and refusing to set aside the final settlement of said estate. The appellant’s motion for a new trial was overruled, and his exception was entered to this ruling, and the court rendered judgment upon and in accordance with its finding, from which judgment this appeal is iiow here prosecuted.
The appellant has here assigned, as errors, the following decisions of the circuit court:
1. In overruling his motion for a new trial;
2. In overruling his demurrer to the second paragraph of the appellees’ answer;
3. The court, on its finding of the facts, ought to have rendered judgment in his favor; and,
4. The judgment of the court was contrary to the law and the evidence.
We will first consider and decide the questions presented by the second of these alleged errors, namely, the overruling of the appellant’s demurrer to the second paragraph of the appellees’ answer.
In this second paragraph of answer, the appellees sub
We are clearly of the opinion that the facts alleged in this second paragraph of answer were not sufficient to constitute any valid defence to the appellant’s petition, or to justify the court in denying him the relief prayed for therein. It will be observed that the appellees have very cautiously
The appeal of the appellant’s claim against the estate of the appellees’ testator was duly reinstated in this court upon notice and motion, as it seems to us ; and there was no allegation of fact, in the second paragraph of the answer, which was necessarily in conflict with this view of the case. The cause was thus reinstated, and was a pending claim against said estate, in this court, for six months before the attempted final settlement of said estate. It was not necessary to the pendency of the appellant’s claim against said estate, that he should have given any appeal bond upon his appeal, nor that he should have sued out, from this court or any judge thereof, any supersedeas or or
At the time the appellees made their final settlement of their testator’s estate, the appellant’s claim was pending against it unallowed, and no creditor, legatee or heir executed to his approval “ bond with penalty and surety, to pay the amount of” the appellant’s claim, if it should be allowed. It is quite clear, therefore, that the appellees’ final settlement of their testatoi’’s estate, as against the appellant and his said claim then pending and unallowed, was illegally made. It is very clear, also, that the appellant, as a creditor, was interested in said estate, and that the appellees, through mistake or fraud, made their final settlement of said estate before any provision had been made for the payment of the appellant’s claim, if it should be allowed. It follows, therefore, that the appellant had the right, under section 116 of the decedents’ estates act, before referred to, to have the appellees’ final settlement of said estate reopened or set aside, his petition therefor having been presented to the circuit court “ within three years after said settlement.” Since the enactment of the act of March 6th, 1878, by which courts of common pleas were abolished, and the circuit courts were clothed with
The court erred, we think, in overruling the appellant’s demurrer to the second paragraph of the appellees’ answer. Having reached this conclusion in regard to the insufficiency of the second paragraph of the answer, which necessarily leads to a reversal of the judgment, it is unnecessary, perhaps, for us to consider any of the other alleged errors. "We have, however, very carefully considered the evidence in the record, and the facts established thereby, and in our opinion the finding of the court was not sustained by the evidence, and therefore we hold, that the court also erred in overruling the appellant’s motion for a new trial.
The judgment is reversed, at the appellees’ costs, and the cause is remanded with instructions to sustain the appellant’s demurrer to the second paragraph of the appellees’ answer, and for further proceedings m accordance with this opinion.