Johnson v. Zimmerman

84 N.E. 541, 42 Ind. App. 165, 1908 Ind. App. LEXIS 26

• Court: Indiana Court of Appeals
• Decided: April 23, 1908
• Docket: No. 6,374
• Status: Published

Opinions

Rabb, J.

Appellees were plaintiffs in the court below. Their complaint is in two paragraphs. The first is in the usual form of a complaint to quiet title to certain real estate described therein; the second averred that Ruel M. Johnson was, in his lifetime, the owner of the real estate described in the complaint; that he, on February 25, 1899, executed to appellees a warranty deed for the same, his wife joining therein; that after its due execution the deed was left with said Johnson by appellees for safe-keeping; that the same was never recorded; that afterwards Johnson died testate, and that the appellants are his executors, devisees and legatees under his will; that upon the death of Johnson appellants came into possession of the deed, and that they refused, upon demand, to deliver the same to appellees. An answer of general denial was filed to the complaint, the cause submitted to the court for trial, and the following finding made by the court: “The court, being well and sufficiently advised in the premises, finds that the plaintiffs are the owners in fee simple as tenants by the entireties of the real estate described in the complaint; that the. defendants claim an interest therein adverse to plaintiffs; that their claims are without right and unfounded; and that the plaintiffs are entitled to have their title thereto quieted.” This finding is followed by a decree quieting plaintiffs’ title to the premises, and this decree is followed by an order directing defendants to deliver to plaintiffs, within five days, a certain deed described as having been executed by the deceased Johnson and wife to plaintiffs, and, on their failure so to do, appointing a commissioner to make a deed. Appellants ’ motion for a new trial for cause was overruled, and within one year from the entering of the decree appellants filed their bond for costs, conditioned according to law, and moved for a new trial as of right, which was overruled, and exceptions properly reserved. The action of the court below in overruling these motions is assigned as error in this court.

The cause relied upon for a new trial is the refusal of the court to admit in evidence an account book kept by the decedent, Johnson. It appears from the evidence that Johnson had formerly conveyed to the appellees a lot in Johnson’s addition to the city of Elkhart, not the one described in the complaint; that Zimmerman and wife, through Johnson, obtained a loan of $1,500 by mortgage upon this property, and at the same time a written agreement was entered into between the appellees, the parties who made the loan to them, and Johnson, by the terms of which the $1,500 loaned was to be placed in Johnson’s hands, and he was to pay the same out for the construction of a dwelling-house upon said lot, and it was claimed by the appellees that the real estate in controversy was paid for out of this loan. It. was contended by the appellants that this was not so, but that the entire amount of said loan of $1,500 was applied by Johnson in payment for the improvement upon the lot, as contemplated by the written agreement. It was for the purpose of proving these payments that the book was offered in evidence.

1. We think this, question is not properly presented by the record before us, and unless properly presented by the record this court has no right to consider it. Martin v. Martin (1881), 74 Ind. 207; Miller v. Evansville, etc., R. Co. (1896), 143 Ind. 570; Drake v. State (1896), 145 Ind. 210; Wilson v. State (1901), 156 Ind. 631; Kraus v. Lehman (1908), 170 Ind. 408; State, ex rel., v. John (1908), 170 Ind. 233.

2. The account and the check stubs proposed to be introduced in evidence are written instruments, as much so as a note, letter, deed, record or deposition. It is the statement in writing contained in the book and on the check stubs that is offered, and such book and stubs nowhere appear in the record. Before any question can be presented to this court on the rulings made by a court below in excluding written instruments offered in evidence, the written instrument offered must be brought into the record. Roseboom v. Jefferson School Tp. (1890), 122 Ind. 377; Rucker v. Steelman (1884), 97 Ind. 222; Musser v. State (1901), 157 Ind. 423; Nudd v. Holloway (1873), 43 Ind. 366; Lautman v. Pepin (1901), 26 Ind. App. 427; Bensch v. Farnsworth (1894), 9 Ind. App. 547.

3. The preliminary proof upon which the rejected evidence was offered was made by one of the executors who had charge of the books and papers. His testimony was that the. account with appellee Zimmerman, on page 164, was in Johnson’s handwriting, and we might infer from this statement that the account proposed to be introduced was a statement in the book of transactions between Johnson and the appellees. But such, very evidently, was not the case, nor is it claimed on the part of appellants that the account registered transactions between Johnson and Zimmerman, but was an account of sums paid out by Johnson to disinterested third persons for work done and materials furnished in the construction of the building upon the lot referred to in the contract between the parties. These disinterested third persons, to whom the payments were made, were entirely competent to testify to every fact exhibited by the record made by Johnson in his book. This court cannot tell from the record what the accounts and checks tendered in evidence would prove, or whether they would tend, in the remotest degree, to support the contention of the appellants.

4. There was clearly no finding in this ease upon any question except that presented by the first paragraph of appellees’ complaint.

This was a suit to quiet title to the real estate in question, and the court erred in overruling appellants’ motion for a new trial as of right, and for this error the judgment of the court below is in all things reversed, with instructions to the court below to grant a new trial, with leave to the parties to reform issues, if desired.