Walker v. Hill

12 N.E. 387, 111 Ind. 223, 1887 Ind. LEXIS 239
CourtIndiana Supreme Court
DecidedJune 14, 1887
DocketNo. 10,453
StatusPublished
Cited by46 cases

This text of 12 N.E. 387 (Walker v. Hill) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Hill, 12 N.E. 387, 111 Ind. 223, 1887 Ind. LEXIS 239 (Ind. 1887).

Opinion

Howk, J.

This was a suit by the appellants, Thomas T. "Walker and Eleanor Baxter, as plaintiffs, against the appellees, Joanna, Mary, Carrie and Emma Hill, as defendants, in a complaint of three paragraphs. The first paragraph was a complaint, in the ordinary form, to recover the possession of certain described real estate in Jennings county; and the second and third paragraphs were each a complaint to quiet the appellants’ title to the same real estate as against the appellees. The cause was put at issue and tried by the court; and, at the appellants’ request, the court made a special finding of the facts, and.stated its conclusions of law thereon, in favor of the appellees, the defendants below. Over the appellants’ exceptions to the conclusions of law, the court rendered judgment against them for appellees’ costs.

The appellees 'have filed a written motion to dismiss this appeal, upon the .ground that the transcript of the record is [225]*225mot certified by the clerk below, in conformity with the requirements of section 462, E. S. 1881. The objection to the certificate is, that the clerk certifies the transcript to be a true and correct ” copy, instead of “ true and complete,” in the language of the statute. In Anderson v. Ackerman, 88 Ind. 481, where the same objection was made to a certified transcript of .a judgment oifered in evidence, it was held .that the words “ true and complete,” as used in the statute, can not be regarded as technical; and the words “true and correct,” as used in the clerk’s certificate, are equivalent in meaning to the statutory words. Besides, this appeal was submitted, by the agreement of the parties, upo.n the transcript as now certified, without any objection then made to the certificate; and nearly five months elapsed after such submission before the appellees filed their motion to dismiss the appeal on account of the supposed defects in the clerk’s certificate. The motion came too late. Such a purely technical motion must be made, if made-at all, on the first appearance of the moving party in this court; otherwise, the objection will be regarded as waived. Peoples Saving’s Bank v. Finney, 63 Ind. 460; Field v. Burton, 71 Ind. 380; Easter v. Severin, 78 Ind. 540; Martin v. Orr, 96 Ind. 491.

Upon the record of this cause, appellants Thomas T. Walker and Eleanor Baxter have jointly assigned the following errors, namely:

1. The court erred in overruling appellant Walker’s separate demurrer to the second, third, fourth and sixth paragraphs of appellees’ joint answer.

2. The court erred in overruling appellant Baxter’s separate demurrer to the second, third, fourth and sixth paragraphs of appellees’ joint answer.

3. The court erred in overruling appellant Walker’s separate demurrer to the third paragraph of appellee Joanna Hill’s separate answer.

4. The court erred in overruling appellant Baxter’s sep[226]*226arate demurrer to the third paragraph of appellee Joanna, Hill’s separate answer.

5. The court erred in sustaining appellee Joanna Hill’s separate demurrer to the second paragraph of appellant Walker’s reply to the second and sixth paragraphs of appellees’ joint answer.

6. The court erred in sustaining Joanna Hill’s separate demurrer to Walker’s second reply to the third paragraph of Joanna Hill’s separate answer.

7. The court erred in sustaining Joanna Hill’s separate demurrer to Baxter’s second reply to the third paragraph of Joanna Hill’s separate answer.

8. The court erred in sustaining Joanna Hill’s separate demurrer to Baxter’s second reply to the second, third and sixth paragraphs of appellees’ joint answer.

9. The court erred in sustaining appellees’ joint demurrer to Walker’s second reply to the second and sixth paragraphs of appellees’ joint answer.

10. The court erred in sustaining appellees’ joint demurrer to Baxter’s second reply to the second, third and sixth paragraphs of appellees’ joint answer.

11. The court erred in sustaining Joanna Hill’s separate demurrer to appellants’ joint reply to the fourth paragraph of appellees’ joint answer.

12. The court erred in sustaining appellees’ joint demurrer to appellants’ joint reply to the fourth paragraph of appellees’ joint answer.

13. The court erred in its conclusions of law upon its special finding of facts.

The point is made by appellees’ counsel, and, under our decisions, it is well made, that the first ten errors, jointly assigned as above by the appellants herein, are not well assigned, and do not, nor does either of them, present any question for our decision. In this court, the assignment of errors constitutes the complaint of the appellants, and, like a complaint in a trial court, it must be good as to all who join [227]*227therein, or it will not be good as to any of them. Where two or more appellants join in one assignment of errors, if they jointly complain in any specification or paragraph of such assignment of a ruling against one of them only as error, such specification or paragraph of error can not be sustained as to any one, because it is not well assigned by all who have joined in such assignment. Hinkle v. Shelley, 100 Ind. 88; Tucker v. Conrad, 103 Ind. 349; Hochstedler v. Hochstedler, 108 Ind. 506. This conclusion disposes of the first ten errors complained of here by the appellants, and we pass to the consideration of the eleventh alleged error, namely: The sustaining of Joanna Hill’s separate demurrer to appellants’ joint reply to the fourth paragraph of appellees’ joint answer.

The fourth paragraph of appellees’ joint answer was filed as a partial defence to the third paragraph of appellants’ complaint. It was shown by the allegations of the third paragraph of complaint that appellants’ father; William R. Walker, prior to May 17th, 1851, died intestate, and seized in fee simple of the real estate now in controversy, and that he left, as his only surviving children and heirs at law, the two appellants and one John Walker, all of whom were then minors under the age of twenty-one years. It was further shown that the interest of said John Walker in such real estate was sold and conveyed, upon the petition of the legal guardian of John Walker and pursuant to the orders of the proper court, to the Peru and Indianapolis Railroad Company ; and that, before the commencement of this suit, the said John Walker died intestate and without issue, leaving the appellants, his brother and sister, as his only heirs at law. The fourth paragraph of appellees’ joint answer was pleaded in bar of that part of the third paragraph of complaint wherein appellants, as the only heirs at law of their deceased brother, John Walker, sought to have their title, as such heirs, quieted in and to the real estate in controversy, as against appellees.

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Bluebook (online)
12 N.E. 387, 111 Ind. 223, 1887 Ind. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-hill-ind-1887.