137 N.E. 773 | Ind. Ct. App. | 1923
Action by appellant against appellees, based in part on an account, consisting of 203 items, covering a period of almost ten years, and aggregating the sum of $5,640.15. The relief sought, as to said account, is a personal judgment against appellees, Orin H. Trook and Richard M. Crouch, with a decree adjudging the same to be a lien on certain real estate owned by them. The complaint was answered by general denials, and pleas of payment and former adjudication, on which issues were duly joined. The cause was submitted to the court for trial, and, on request, the court made a special finding of facts and stated its conclusions of law thereon, which were followed by a judgment in favor of appellees. Prior to the submission of the cause for trial, appellant filed a motion to have the same consolidated with a cause then pending in the Grant Circuit Court, which was overruled. After the court had made its special finding of facts and stated its conclusions of law thereon, but before the rendition of judgment, appellant filed a motion for a venire denovo, which was overruled. Appellant thereafter filed a motion for a new trial, which was overruled, and this appeal followed, based on an assignment of errors, which requires a consideration of the questions hereinafter determined.
Appellant contends that the court erred in overruling *312
his motion to consolidate this cause, which was pending in the Grant Superior Court, with a cause pending in the Grant 1-3. Circuit Court. It appears to be a general rule, that, in the absence of statutory provisions, a consolidation of actions, even where permissible, cannot be demanded as a matter of right, but may be granted or denied, as the court in its discretion may determine, and its action in that regard will not be ground for reversal, unless such discretion was manifestly abused. 1 C.J. 1123; 1 R.C.L. 360; 1 Watson, Revision Works' Practice 731; Grant v. Davis, Admr. (1892),
Appellant also contends that the court erred in overruling his motion for a venire de novo. He appears to base this contention on two grounds, viz.: (1) That the court failed to make a 4. finding as to certain facts essential to his right of recovery, which were clearly established by the evidence. (2) *313
That the finding of facts and conclusions of law are too indefinite and uncertain to authorize the rendition of a judgment thereon. As to the first ground, it suffices to say, that where a finding of facts contains substance enough to support a judgment one way or the other, it will not be objectionable because it does not find on all of the issuable facts. In such case, the remedy is by a motion for a new trial, and not by a motion for avenire de novo. Maxwell v. Wright (1903),
Appellant finally contends that the court erred in overruling his motion for a new trial. He bases this contention chiefly on the ground that the evidence does not sustain the material finding in favor of said appellees Trook and Crouch that all the matters in issue in the instant case, not expressly excepted, were fully adjudicated in a prior action in the Grant Circuit Court, designated therein as cause No. 14,059. In support of this contention, appellant asserts that two of the principal issues tendered by him in his complaint in the instant case were not involved in said former action, viz.: his right to a personal judgment against said appellees on the account in suit, and his right to have the same decreed to be a lien on the real estate in question. Appellees seek to limit the scope of our determination in this regard by asserting that appellant, by his complaint in this action, does not seek a personal judgment against them, but only to have the indebtedness evidenced by his alleged account decreed to be a lien on *314 certain real estate. We cannot agree with appellees' contention, as appellant's complaint, when fairly construed in the light of its controlling averments, must be held to be an action in which both elements of relief mentioned above are sought. This being true, we must consider whether the evidence shows, as found in the instant case, that both of said matters were fully adjudicated in said former action.
The record discloses that the pleadings in said former action are in evidence in the instant case; that they consist of a complaint by said Orin H. Trook against appellant and the 5-8. said Richard M. Crouch, and a cross-complaint by said Crouch against appellant and said Orin H. Trook, both of which were answered by general denials, and also a cross-complaint by appellant against said Trook and Crouch, which was also answered by general denials. The substance of said complaint and cross-complaints is set out in the opinion of this court in said former case, as reported in
"Come the parties herein by their respective counsel, and the court having heretofore heard all the evidence and being well advised in the premises now finds that the plaintiff Orin H. Trook, and the defendant, Richard M. Crouch are the owners of the real estate described in the complaint and that the same is hereby held in trust for them by the defendant, William H. Trook, and that they are entitled to immediate possession thereof, together with the rents and profits accrued thereon to said Will H. Trook, less any proper credits against the same to be adjudicated at present term of court."
This was, in effect, an order against appellant for an accounting as to the rents and profits arising from his trust, but the record does not disclose that he made any accounting in pursuance thereof, or that any evidence was thereafter heard as to the state of appellant's account as such trustee, or upon any other subject or issue involved in said action, but it does appear that the court, thereafter at the same term, again made the same finding and order as to an accounting on the part of appellant, and also found, in effect, that appellant held the real estate in question in trust for appellees Trook and Crouch, that they were the owners of the same, and entitled to the immediate possession thereof; that they were entitled to have and receive, of the Flint Elevator Company, the sum of $312, more or less, being the full amount in its hands for grain produced on said real estate and sold by appellant; that they were entitled to recover of appellant, on account of the sale of a portion of the real estate belonging to his said trust, and on *316
account of rents collected therefrom by him, the sum of $175; and that appellant take nothing by reason of his said cross-complaint. The record further discloses that, following this finding, and as a part of the same entry, a judgment was rendered against appellant in favor of said appellees for $175, and that they recover the said sum of $312, more or less, in the hands of said Flint Elevator Company; that said appellees recover of appellant the immediate possession of the real estate involved in said action in the proportions therein adjudged, and an order was entered that he convey a portion of the same to said Crouch separately, and the remainder thereof to said Trook and Crouch jointly, as therein specifically stated, within ten days from July 1, 1911, and, on failure so to do, that William H. Carroll make said conveyance as a commissioner. The court also adjudged that appellant take nothing by his cross-complaint in said action, in which he sought to quiet his title to the real estate in question against appellees. The record discloses that the evidence in the instant case is voluminous, and that it would be impracticable to set it out in detail, but the above statement is at least such an outline as will make clear the questions with reference to the sufficiency of the evidence to sustain the finding in the particulars challenged. It is well settled that an adjudication in a prior action is conclusive upon all questions which were, or might have been, litigated and determined, underthe issues in the action in which the judgment pleaded was rendered. Fromlet v. Poor (1892),
A further examination of the pleadings in said former action will disclose that no question of any amount due appellant from said appellees was within the issues, except such as might 9. arise from an accounting on the part of appellant in his trust capacity, in the event he should be adjudged a trustee, and ordered to account as such. It follows that the mere fact that the account in suit was introduced in evidence, in connection with other matters, in determining whether appellant held the real estate in question as the absolute owner or as a trustee, and should be ordered to account as such, affords no basis *319 for the rendition of a money judgment. The record before us does not show that said account was introduced in evidence in said former action when any question was before the court for its determination except those indicated above, and hence, without an agreement of the parties, which the record fails to disclose, the court had no authority to consider or pass upon it, in the determination of any question in said cause on which it was not offered as evidence. We make these statements in view of the generally recognized rule of procedure in actions of this character, which is stated in a recent legal treatise as follows:
"Upon an application for an account, the only question to be considered is whether the account shall be taken — plaintiff's right to the accounting and defendant's liability to render the account — and therefore the only evidence necessary upon the hearing at this stage is that which shows the particular right and liability and matters which are properly for consideration as to the state of the accounts will not be inquired into." 1 C.J. 643.
This statement was quoted with approval in the case ofUnderdown, Exrx., v. Underdown (1921),
The same rule was recognized in the case of Kennedy v.Tranquility, etc., Co. (1915),
In the case cited in the quotation last given, the court, in considering what evidence should be heard on the preliminary hearing, in an action for an accounting, said: "Evidence as to the particular items of the account is irrelevant at this stage of the cause." In the case of Collyer v. Collyer (1861), 38 Pa. St. 257, the court made the following statement with reference to the procedure under consideration:
"This case was evidently tried improperly, and therefore it comes before us in a shape that does not entitle it to decision by us. The preliminary question of the cause, the defendant's liability to account, was not distinguished from the question how much would be due on the account, and therefore there was no preliminary decree for or against the right to an account, and the bill, answers, and testimony contain an indiscriminate mixture of allegations and evidence on both these questions, and we have nothing to show which of them was decided against the plaintiff." See, also, Barrett v. Henry (1888),
The trial court, in the instant case, it will be observed, recognized this rule of procedure, by hearing evidence which led to a finding, in effect, that appellant held the legal title to the real estate in question in trust for said appellees, and not as the owner thereof; and that said appellees were entitled to recover all rents and profits accrued therefrom to appellant, less any proper credits against the same to be adjudicated at that term of court.
While the court, in effect, made an order against appellant for a limited accounting in relation to the real estate which it found he held as trustee for said appellees, viz.: for 10-12. the rents and profits arising therefrom, the record does not show that such an accounting was ever made or had in any manner. However, the court thereafter rendered judgment against appellant in favor of said appellees for $175, and ordered that they recover of the Flint Elevator Company the sum of $312, more or less, in its hands on account of grain produced on said real estate, which we must assume is a judgment on accounting, as that was the only matter in which the issues authorized the rendition of a money judgment, except for costs. The correctness of such an assumption is confirmed by the finding on which such judgment is based. Evans v. Schafer (1882),
Appellant complains of certain rulings of the court with reference to the admission and rejection of certain evidence, but an examination of his brief discloses that he has failed 13. to present any question in this regard, as the decisions in the following cases will confirm. Johnson v.Gephart (1917), *324
For the reasons stated, we hold that the court erred in overruling appellant's motion for a new trial.
Judgment reversed, with instruction to the trial court to sustain said motion, and for further proceedings consistent with this opinion.