63 Ind. App. 272 | Ind. Ct. App. | 1916
Lead Opinion
On July 8, 1910, appellee Orrin IT. Trook commenced an action in the Grant Circuit Court against his coappellee, Richard M. Crouch, and appellant, William H. Trook. Prom the complaint it appears that appellee Crouch was the owner of several tracts of land in Miami and Grant counties, Indiana, which were heavily incumbered. One Milton Shirk held a mortgage on all' of said real estate, and appellee Orrin H. Trook held a mortgage on a part of the same, which was a prior lien to the Shirk
Appellant, William II. Trook, filed a cross-complaint setting up that he was the owner of the real estate described in the complaint and asked that the title to the real estate be quieted in him. The issues being closed as to the complaint and cross-complaints by answers of general denial by the respective parties, a trial resulted in judgment for appellees, Orrin H. Trook and Crouch, that they were the owners of the real estate described in their pleadings and were entitled to the immediate conveyance from William H. Trook, as their trustee; that he had no right or title to the real estate, except as held for the benefit of Orrin II.
A new trial as of right was granted appellant and thereupon the cause was transferred from the circuit court to the Grant Superior Court. At the October term of the Grant Superior Court, on motion of Orrin PL Trook and Richard M. Crouch, the order granting the new trial as of right was set aside, and the decree and judgment of the circuit court was in all things restored, on the ground that the cause was one in which a new trial as of right was not demandable. The several errors assigned by appellant all go to the right and authority of the court to set aside the order granting a new trial as of right.
By §9 of an act defining the jurisdiction of the Grant and Delaware superior courts (Acts 1909 p. 79, §1566 Bums 1914), it is provided, among other things, that,- “all orders, judgments and decrees of said superior court shall have the same virtue, force and effect as the orders, judgments and decrees of the circuit courts of this state.”
In Foster, Admr., v. Potter (1865), 24 Ind. 363, it was said, in speaking of the power of the court to wMch the cause had been venued, that: “If the venue had not been changed, it can ’hardly be doubted that that court might have corrected its own mistake, and it is equally clear that the court to which the venue was changed was possessed of the same power.” This was where the Fountain Circuit Court vacated a judgment, - and after the case reached the Tippecanoe Circuit Court on change of venue, the Tippecanoe Circuit Court set aside the order vacating the original judgment as made by the Fountain Circuit Court.
In Niagara Oil Co. v. Jackson (1911), 48 Ind. App. 238, 91 N. E. 825, it was held that, after the venue of the cause had been changed from the Randolph to.the Delaware Circuit Court, where a new party plaintiff was made by the filing of an amended complaint, over the objection of the defendant, that the Delaware Circuit Court had the same jurisdiction and power to make any order
“A court to which a cause is properly removed by change of venue acquires jurisdiction of the cause and subject-matter, eo-extensive with that of the court from Avhich the venue was removed, and may inquire into anything connected with the subject-matter of the action, and render any judgment which might have been rendered by the court in which the case, originated.” Hazen v. Webb (1902), 65 Kan. 38, 68 Pac. 1096, 93 Am. St. 276; United Zinc, etc., Co. v. Morrison (1907), 76 Kan. 799, 92 Pac. Rep. 1114. The fact that the cause reached the Grant Superior Court on change of venue did not deprive that court of authority to inquire into the correctness of an order made before the cause reached such court as to the granting of the new trial as of right. Hazen v. Webb, supra.
We find no reversible error in the record. Judgment is therefore affirmed.
Rehearing
On Petition for a Rehearing.
Appellant, by his petition for a rehearing .and briefs supporting the same, insists that the court erred in its original opinion in holding: (1) that appellant >vas not entitled to a new trial as of right; and (2) that the Grant Superior Court had authority to set aside an order of the Grant Circuit Court granting a new trial as of right after the cause was’ transferred to the superior court by agreement of the parties.
by appellant originally, and what we have said in our former opinion fully covers such questions.
The decree in the case at bar is quite comprehensive in its scope. It adjusted the entire transaction mentioned in the original opinion as between the parties, not alone between appellant and appellees, but as between the appellees, as-appellant was directed to convey a part of the real estate to the appellees jointly and a part to them in severalty, and in the same decree the court found that appellant was indebted to appellees in the sum of $175 for money that came into his hands while acting as trustee for the appellees, for which a personal judgment was rendered against him. Likewise it was found that appellees were entitled to receive the sum of $312 from the Flint Elevator Company for grain sold from the real estate in controversy by appellant in the course of his trust.
The personal judgment rendered for $175 against appellant and the finding that the appellees were entitled to the sum of $312 due from the Flint Elevator Company were within the issues, as the complaint in this respect stated a substantive cause of action for an accounting. Hence, the complaint stated two substantive causes of action even on appellant’s .theory, one of which would, and the other
could not under the facts pleaded he held sufficient
on the theory of establishing a trust in appellant to the real estate in favor of appellees. This question, not having been heretofore raised, cannot he considered upon a petition for a rehearing.
The petition for a rehearing is overruled.
Note.—Reported in 113 N. E. 730. See under (1-3) 29 Cyc 1037-1043; (4) 40 Cyc 176.