150 Ind. 287 | Ind. | 1898
Action by appellant in the lower court as the administrator of Frederick Tormoehlen against'
An amended complaint was filed by appellant, and numerous answers by the several defendants were addressed to this complaint, wherein it was alleged, among other things, that the notes in suit were executed without any consideration whatever. Several of the appellees who held claims against George F. Tormoehlen, secured by mortgages on the lands in .controversy, filed separate cross-complaints, whereby they sought to secure foreclosure of such liens. Issues were joined between the parties on these several pleadings, and a trial resulted in the court finding that the notes in suit had been executed to appellant by George F. Tormoehlen without any consideration whatever, and finding also in favor of the appellees upon the issues tendered by their several cross-complaints; and, over plaintiff’s motion for a new trial, the court rendered its judgment that he take nothing under his. action, and further ordered and decreed that the real estate in dispute be sold, and directed the manner in which the proceeds arising upon such sale should be applied in satisfaction of the several liens and claims held by the appellees.
We can consider no questions which appellant seeks to have reviewed under his fourth, fifth, sixth and seventh specifications, because it is evident that these alleged errors would form a basis for a new trial, and therefore cannot be assigned independently as errors for the first time in this court, but in order to be available on appeal they should have been assigned in the motion in the lower court as reasons for a new trial. This rule is one well affirmed and settled. Elliott App. Proc., section 847.
The first assignment of error, when applied to and tested by the record, is too indefinite and un
The second and third specifications are open to the same objections urged against the first. It is shown by the record that at least three separate cross-complaints were filed by different ones of the appellees. The part of the transcript to which we are referred by counsel for appellant as disclosing the motion, and the court’s ruling thereon upon which it is sought to base the second assignment, shows that the plaintiff filed a motion to strike out and reject the cross-complaint of the defendants, Empson, Mason, Johnson, Hancock, and “others.” The motion which is shown
In regard to the third assignment, we find that the record shows that plaintiff demurred to the “cross-complaint of P. B. Mathiason et al.,” and subsequently filed a demurrer “to the cross-complaint” which the court overruled, and plaintiff excepted, but this latter demurrer does not appear in the transcript. It is so evident under this condition of the record that appellant must fail in his effort to present any question under the third assignment that nothing more heed be said in respect thereto.
Appellant complains, by his eighth specification, of the action of the court in denying his motion asking that the facts be restated so as to show advancements made to George F. Tormoehlen. There was no request made by any of the parties to this action for a special finding of facts, and the finding made by the court is a general one; and under such circumstances we recognize no legitimate reasons, neither do counsel for appellant point out any, for requiring the court to enlarge its general finding so as to make a statement or finding of facts relative to the advancements mentioned.
The tenth assignment in regard to overruling appellant’s motion for “judgment against George F. Tormoehlen on his default on the complaint” presents no question, for the principal reason that no such motion as the one specified appears in the record. There is a motion to the effect that the court restate its finding as to George F. Tormoehlen, etc., but this is a motion quite different from the one assigned.
This last assignment in the motion for a new trial is not available. An examination of the part of the transcript to which we are cited by appellant in his brief as supporting this alleged error discloses that one “John Turmail,” and not “John W. Tormoehlen,” was offered as a witness on the trial, and, upon objections being made by the defendants, this witness was not jiermitted by the court to testify. The witness named and specified in the motion for a new trial does not correspond with, nor answer to,the one named in that part of the record to which we are referred, and under such circumstances we cannot review the alleged error. Again, if the assignment as specified in the motion for a new trial could be applied to the record, it would not be available for the reason that it is not disclosed that the trial court was informed as to what appellant expected or proposed to prove by the witness. Cox v. Dill, 85 Ind. 334; Bauer v. City of Indianapolis, 99 Ind. 56, and cases there cited; Shepard v. Goben, 142 Ind. 318.
. We have carefully read and considered the voluminous evidence in this cause, and, while, as is generally the case; there is some conflict therein, still it sufficiently sustains the finding, and justified the court in rendering judgment against appellant. There is no available error shown, and the judgment is therefore affirmed.