Mack v. Ruble

135 N.E. 812, 78 Ind. App. 460, 1922 Ind. App. LEXIS 126

Opinion

Remy, J.

— Action by appellee against appellant to quiet title to certain real estate. To the complaint, appellant filed answer asserting title as tenant in common with appellee, to the undivided one-half of the real estate described in appellee’s complaint; also a cross-complaint to quiet title, and for partition. To appellant’s answer and cross-complaint appellee pleaded the general issue. Trial by the court resulted in a judgment for appellee quieting his title, and for partition.

The only question involved in this appeal is the sufficiency of the evidence to sustain the decision.

Neither'the action nor cross-action is of equitable cognizance. The complaint and cross-complaint each count upon a legal title, and nothing more. The cause, therefore, might have been tried by a jury. Martin v. Martin (1889), 118 Ind. 227, 20 N. E. 763; Robertson v. McPherson (1891), 4 Ind. App. 492, 495, 31 N. E. 478. Under such circumstances, §8 of the act of March 9, 1903 (Acts 1903 p. 338, §698 Burns 1914) making it the duty of courts of appeal of this state, on certain conditions, to “consider and weigh the evidence” heard by the trial court in cases not “triable by a jury,” is not applicable.

There is evidence to sustain the decision of the trial court.

Affirmed.