44 Ind. App. 694 | Ind. Ct. App. | 1909
Appellee brought this action against appellant to recover one-half of a sum of money collected by appellant on account of a judgment in his favor against another. The complaint was in three paragraphs. The first two paragraphs were practically alike, and, in substance, show that on January 7, 1891, Jonas M. Lamburn, of Jay county, Indiana, was indebted to the husband of appellee and to appellant, respectively, in large sums of money; that at that time Lamburn was the owner of certain real estate, which he thereafter conveyed to his son, leaving no property subject to execution; that he refused to pay said indebtedness ; that appellant and the husband of the appellee entered into an agreement, whereby they employed counsel and brought suit against Lamburn to obtain judgments for the several amounts of money due to each of them, and to set aside said conveyance as fraudulent; that each agreed to pay one-half of any expense of said suits, and equally to divide the proceeds which might be derived therefrom. The suit brought by appellant, pursuant to said agreement, was prosecuted to final judgment, and a decree was entered setting aside said conveyance as fraudulent. For the purpose of saving expense, the equity of Lamburn in the land being small, the attorneys having in charge the collection of said claims dismissed that part of the complaint of appellee’s husband which attacked said conveyance, and judgment by default was taken against Lamburn; that each contributed one-half of the expense of both suits. In 1899 appellee’s husband died, and all of his property, including his interest in these judgments, was set over to the appellee as his widow under §2943 Burns 1908, §2419 R. S. 1881. In 1904 appellant received $560 on his judgment, that being the only sum ever received upon either judgment, and which amount he still retains, and refuses to pay any part of the same to appellee. The third paragraph was for money had and received.
Appellant insists that the first and second paragraphs of the complaint are bad, because: (1) The contract sued on is within the statute of frauds; (2) that it was champertous, and therefore void.
Appellant in his motion for a new trial insists: (1) That the verdict is not sustained by sufficient evidence; (2) that certain instructions given by the court to the jury were erroneous; (3) that the court erred in refusing to give certain instructions asked for.
In the case of Thompson v. Thompson (1901), 156 Ind. 276, it was held to be settled “that in order to make the instructions a part of the record in a civil case, without a bill of exceptions, they must be filed in open court [§542 Burns 1894, cl. 6, §533 R. S. 1881], and the record must affirmatively show they were so filed.” The cases to which we have just referred are controlling of the question now being considered, and we must, therefore, hold that the instructions are not in the record. In the case of Hammond, etc., Electric R. Co. v. Antonia (1908), 41 Ind. App. 335, this court held that a record similar to the one before us sufficiently showed that the instructions were properly filed. That decision seems to be in conflict with the holding of the Supreme Court, and to that extent that decision is now overruled.
Having considered all of the errors relied on by the appellant, and finding no reversible error, the judgment is affirmed.