York v. Cooper

114 N.E. 90, 63 Ind. App. 119, 1916 Ind. App. LEXIS 174

Opinion

Ibach, J.

Appellee brought this action against appellants to quiet title and to foreclose a lien on certain real estate. The complaint is in two paragraphs. The first paragraph is in the ordinary form of a complaint to quiet title, and the second seeks to reform a certain contract and to foreclose a lien created thereby. There was a trial by the court and on request a special finding of facts and conclusions of law stated thereon were filed, the court concluding as a matter of law that appellee was entitled to a reformation of the contract and a foreclosure of the same as a purchase-money lien. Judgment followed the conclusions of law.

Tlie errors assigned and relied on for reversal are: (1) The overruling of appellants’ motion to modify the court’s finding of facts by striking out special finding No. 3. (2) The overruling of appellants’ motion to modify the court’s special finding of facts, by striking out special finding No. 4. (3) The overruling of appellants’ motion for a new trial.

1. 2. No question is presented by either the first or second assigned errors. Motions to modify, strike out, or add to the special findings are not recognized by our code of procedure. The sole remedy is provided by a motion for a new trial, Chicago, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 237, 241, 64. N. E. 860, and cases cited; Citizens Trust Co. v. National, etc., Supply Co. (1912), 178 Ind. 167, 177, 98 N. E. 865, 41 L. R. A.(N. S.) 695. As to the third assigned error there has been no effort on the part of appellants to comply with clause 5, Rule 22, and without searching the record this court would be unable to' determine what questions were sought to be presented by the motion for new trial, or whether in fact such a motion was filed or ruled on. No question is therefore presented by this assignment. Reeves & Co. v. Gillette (1910), 47 Ind. App. 221, 223, 94 N. E. 242. Judgment affirmed.

Note. —Reported in 114 N. E. 90.