Rader v. Sheets

26 Ind. App. 479 | Ind. Ct. App. | 1901

Robinson, J.

The complaint does not state any cause of action against Irvin Bader, and appellees concede that the findings and conclusions of law do not authorize any judgment against him. The complaint states a cause of action against Isolene L. Bader. The objection that it seeks to enforce a married woman’s contract concerning lands in which the husband did not join is not well taken, because the complaint does not disclose coverture.

The motion to modify the judgment was correctly overruled. The judgment followed the conclusions of law stated. The change asked in the motion would have made the judgment not in accordance with the conclusions of law. The statute requires that in a special finding the court shall state the facts in writing, and then the conclusions of law upon them, and judgment shall be entered accordingly. §560 Burns 1894. If the party thinks the conclusions of law are wrong, he may except. If the judgment does not conform to the conclusions, a motion to modify would be proper. But if the judgment conforms to the conclusions, a motion to modify the judgment presents no question, for the reason that in such a case the error, if any, is in the conclusions of law, and not in the judgment. Smith v. McKean, 99 Ind. 101.

Upon the special finding of facts, the court stated three conclusions of law, numbered one, two, and three. The record recites: “Defendants separately except to the conclusions of law, which exceptions are by the court overruled, and the defendants except.” It has often been held that such an exception presents no question unless all the conclusions of law are bad. . In the case at bar no objection is made to the first conclusion of law, and it is certainly not erroneous. Royse v. Bourne, 149 Ind. 187; Clause, etc., Co. v. Chicago, etc., Bank, 145 Ind. 682.

It is true error is assigned “that the court erred in each conclusion of law on its findings.’.’ The question presented by this assignment of error is not the question presented to the trial court by the exception to the conclusions of law. The exception in the court below was joint. “Where the objection or exception in the court below, or assignment of error in this court, is joint as to several rulings or acts of the court, the same will fail unless valid as to all of such rulings or acts.” Saunders v. Montgomery, 143 Ind. 185, and cases cited.

Judgment reversed as to Irvin Bader, and affirmed as to Isolene L. Bader.