
    
      No. 7352.
    Clark v. Stephenson et al.
    
      Partition. — Objections to Report of Commissioners. — New Trial. — Assignment of Error. — Practice.—Supreme Court. — Rulings on objections filed to the confirmation of the report of commissioners appointed to partition real estate can not be presented to the Supreme Court by an assignment of error on the overruling of a motion for a new trial, but must be presented by an assignment of ei’ror directly on the rulings o' tlie court on such objections, on exceptions to such rulings saved in bill of exceptions. Elliott, .T., dissents.
    
      £>ame. — Parties.—Lien-Holders.—Lien-holders on real estate are proper parties in a suit for partition thereof.
    From the Hamilton Circuit Court.
    
      M. A. Chipman and H. G. Ryan, for appellant.
    
      D. Moss and R. R. Stephenson, for appellees.
   Woods, J.

— Appeal from a judgment in partition. The appellant has assigned error upon the action of the court in. overruling his demurrer to the complaint and his motion for a new trial. The action was by the widow of the deceased owner of the land, and her share was set off.

In reference to the complaint, the counsel for the appellant claim, ‘ ‘that the right of the widow to partition is against the heirs alone, and not against the creditors of the estate of her deceased husband. Their right, if any, is independent of hers, and can not be curtailed or enlarged by her claims or concessions.” The appellant was a mortgage creditor, having a mortgage, in which the widow had not .joined, on a. part of the lands, other parts being under other mortgages,, one of which the widow had joined in executing; while in the others she had not joined, There were also judgment creditors. The estate was insolvent. The total of the real estate exceeded in value $10,000, but was worth less than $20,000. The mortgage in which the widow had joined amounted to $12,000, and was about equal to the value of the 400 acres of land covered thereby. It was plainly proper that the appellant and other lien-holders' should have been made parties.. Milligan v. Poole, 35 Ind. 64; Applegate v. Edwards, 45 Ind. 329.

In her petition for the partition, the widow claimed only a one-fourth interest in the whole real estate. Issues of fact were formed upon the petition and the answers of the respective parties, which were tided by the court. The court made a special finding of the facts, and a statement of legal conclusions therefrom, finding, among other things, that the widow’s share, stated as one-fourth of the whole, could be set off to her advantage, and without injury to the other interests, in a certain designated part of the lands, including the portions covered by the mortgage of the appellant and by the other mortgage in whose execution the widow did not join. An interlocutory order was made determining the respective rights and interests of the parties, and appointing’ commissioners to set off the widow’s share as found andl stated. Each party saved exceptions to the conclusions of law. The commissioners made a report at the next term of the court, the material part of which is in the following words : “We do hereby set off to said petitioner, in lieu of her undivided one-fourth interest as widow, the following; real estate, situate in Hamilton county, Indiana, to wit Twenty-six and two-thirds (26|) acres off the west side of* the west half of the north-east quarter of section eighteen (18), township nineteen (19), range six (6) east; she * *" to hold and enjoy said lands, which is one-third in value, ini severalty, and free from all demands of the defendants,. Scarce and Clark, against the same by virtue of certain mortgages thereon held by them and executed by said decedent in his lifetime. We also set off to her, in fee-simple,, ■all that part of the north-west quarter of said section eighteen,” etc., (here follows the description of a tract containing fifty to sixty acres, perhaps). “All of which is respectfully submitted to the court for approval.”

The appellant filed objections to the confirmation of this-report on the ground, substantially, that said commissioners, as against him, had assigned and set off to the petitioner one-third of said real estate, when, as against him and the other creditors, she is entitled to but one-fourth part of said real estate, thereby depriving him of .one-twelfth of his security if the report be approved. This objection the court overruled, and rendered judgment on the report. The appellant then filed a motion for a new trial, of which the-following-is a copy :

“Louvina Stephenson 4 “JohnC. Stephenson etal. )

gtate ^ Indiana'; Hamilton County, ss..

“Comes now the defendant, Haymond W. Clark, and' moves the court for a new trial in the above cause, for the; following causes, namely:

“1. That the court erred in overruling the exceptions of this defendant to the report of the commissioners who made partition.
“2. That the court erred in confirming the report of the •commissioners making partition in said cause.
“3. That the finding and judgment of the court upon the •exceptions of this defendant to the report of the commissioners who made partition, is not sustained by sufficient evidence.
“4. That the finding and judgment of the court upon the exceptions of this defendant to the report of the commis■sioners who made partition, is contrary to law. Wherefore he asks for a new trial.
“Chepman & Ryan, Attorneys for Clark.”

The report does not show, as counsel for the appellant •contend, that the commissioners exceeded their authority by setting off to the widow one-third of the real estate, while the order was to allow her only one-fourth. As we interpret it, the report means merely that the 26| acres given the widow out of the tract of land covered by the mortgages •of the appellant and Scarce constituted one-third in value of that tract; and these 26f acres, together with the other parcel which was set off to her, constituted the one-fourth in value of the entire realty, the same being, in the language •of the report, “set off to said petitioner in lieu of her undivided one-fourth interest as widow.” The question which we are asked to decide, therefore, comes to this : The widow being entitled, on account of the value of the property exceeding. $10,000, to only one-fourth, as against creditors, but, having joined in the execution of a mortgage to the. ;amount of $12,000, on a part of the realty, and as against the holder of that mortgage having no right in that part of the estate, save-a worthless right to redeem, and there being •other parts of the estate on which her husband had given mortgages in which she did not join, can she be allotted, out of the last named portions, the one-third thereof, in order to’ make up to her in value the ,one-fourth of the tvhole estate, the total value thereof being less than $20,000, and, deducting the amount of the mortgage which she joined in executing, being less than $10,000?

Counsel for the appellee, however, insist that the question is not in the record, as there is no assignment of error except on the overruling of the motion for a new trial, and that the exception to the report of the commissioners was-not a matter to be presented by a motion for a new trial. We think the point well made. If it were conceded that the exception made to the report of the commissioners was well taken, and that the report ought on that account to have been set aside, still a new trial would not have been necessary. If the exception had been sustained, nothing more would have been necessary than an-order setting aside the partition as reported, and requiring the commissioners or another set of commissioners, under proper and more specific directions, to do the work over.

The error assigned here should have been upon the refusal of the court to sustain the exception to the report, and to set the same aside. If the appellant had been dissatisfied with the finding of facts by the court, or claimed that the court erred in admitting or excluding evidence, or had been aggrieved at any action of the court in connection with the trial, his remedy would have been by motion for a new trial, as in ordinary cases ; but the matter here complained of occurred after the trial had been had, and the correction of the mistake or wrong, if any was committed by the commissioners, required no new trial of any issue in the case. The proper rule of practice is clearly indicated in Kern v. Maginniss, 55 Ind. 459, where it is said : “If the appellants had any objection to the verdict of the jury, they should have moved for a new trial, and properly reserved their exceptions. If they had any objections to the repoi’t of the com.missioners partitioning the land, they should have shown good cause against it, and properly reserved their exceptions.” This practice was followed in Randles v. Randles, 63 Ind. 93; Griffy v. Enders, 60 Ind. 23.

It is true that in Kern v. Maginniss, supra, and in other cases decided by this court, it is said that the report of commissioners stands as a verdict until set aside for cause shown. In Lucas v. Peters, 45 Ind. 313, citing Lacoss v. Keegan, 2 Ind. 406, and Lake v. Jarrett, 12 Ind. 395, besides certain • cases from 4 Edwards Chancery and 19 Wendell, it is said : “The report of the commissioners is to be regarded in the ■light of a verdict of a jury rendered upon a trial at law; and it should be disturbed or interfered with by the court only upon grounds similar to those on which a verdict would be .•set aside, and a new trial gi-anted.” But it by no means follows that the objections to a report must be presented in •a motion for a new trial. If it is not manifest from the quotations made therefrom, an examination of these cases and the cases referred to, will demonstrate that the courts in deciding them had under consideration, not the manner in which objections to such reports should be made and exceptions saved to the ruling of the court thei’eon, but the nature .and grounds of the objections themselves, which should be deemed sufficient. If the objection be to the report, or to the -conduct of the commissioners, the proper practice is to move to-set aside or to vacate the report (Freeman Cotenancy & Partition, sec. 525) ; and, if the ruling of the court be adverse, to save the exception by a bill of exceptions, showing the motion, the grounds of objection, the proofs made, if any, and the action of the court; and, in this court, the error should be assigned directly on that action, just as upon a ruling on a demurrer.

The motion for a new trial is no more fit, and no more necessary, to save such a question than it is to present a rul-ing on a demurrer, or on a motion to modify a judgment, or to set aside a default, or for judgment non obstante, or the like, and, being unnecessary and irrelevant, an assignment •of error upon, the ruling on that motion, made for any such purposes, can not be deemed to present any question for decision. It may be said that the record shows plainly enough what question the appellant endeavored to bring to this •court, and that the point was made below and passed on by the circuit court. So, too, in all the cases supposed above, if the new trial should be moved for on account of rulings ■on demurrer, motions to set aside default, or on account of any conceivable ruling of the court, and error should be assigned upon the overruling of that motion, it would be plain enough what was intended. Once we adopt such a test and rule of practice, we shall be driven to the position that any and all exceptions, if properly saved and assigned as causes for a new tidal, will be considered and decided by this court if error is assigned on the overruling of the motion for a new trial. It will not do to say that the appellant’s motion was miscalled a motion for a new trial, while, in fact, it was, and was intended to be, a motion to vacate the report. It begun by moving, and ended by praying, that a new trial be granted. It is so named in the clerk’s entry of filing, in the court’s order overruling it, and in the marginal note on the transcript.

The death of the appellant having been suggested, the judgment will be affirmed as of the date of the submission, ■to wit, May term, 1879.

Judgment affirmed, with costs.

Dissenting Opinion.

Elliott, J.

— It is clear to my mind that the court below erred in approving the report of the commissioners, and, in mjr judgment, the erroneous ruling is presented for our consideration. I do not say that the error is presented in a technically proper mode ; on the contrary, I think the motion is in form faulty, and in name incorrect. But I do think that the erroneous ruling is substantially presented, and that we ought not to deny appellant his right because he has misnamed his motion and improperly designated the relief sought.

The error is in the name and form only. The motion should have been named a motion to vacate the report of the commissioners; the relief asked should have been an order setting the report aside. The reasons assigned in support of the motion show with the utmost certainty and clearness, that the only relief sought was the vacation of the report, and the grounds upon which the right to that relief -is based are stated with precision and particularity. I am unwilling to join in holding that the mistake in naming the motion and in designating the relief sought should result in the denial of a legal right.

It has been decided over and over again that a right result may be reached by a mode technically irregular and incorrect. Time and again it has been held that a motion may effectually accomplish that which it was, technically and properly, the office of a' demurrer to bring about. I can not see why we may not properly apply this doctrine, which certainly is in harmony with the spirit of our code, to a motion which contains ample cause for the relief sought, and which with great certainty indicates the appropriate relief.

It has also been held in very many cases, that a ruling made in the progress of a cause must be presented to the court below for review, and that it can not be assigned on appeal as an independent error. The principle which underlies these cases is that rulings supposed to be erroneous must be presented to the trial court for review, in order to afford the court an opportunity to correct its own erroneous rulings. To be consistent, we ought, it seems to me, to hold that the ruling upon the appellant’s exceptions should have been presented to the court for review. This is precisely what his motion did. True, it was wrongly named, and erred in the relief prayed, but we ought not to sacrifice substantial right to mere name and form. With all deference to the opinions', of my brethren, I can not think that their conclusion can be harmonized with the long line of cases upon the subjects to which I have referred.

So, too, there are many cases holding that an error in the • prayer tíf a complaint or counter-claim does not affect the complainant’s right to relief. I can see no reason why such an error in a motion should result in a complete denial of relief. As I see it, the question is, or ought to be, to what relief do the substantive statements in the body of the pleading or motion entitle the party? Form, once such a potent factor in civil procedure, is now of comparatively little importance ; so we must hold, or much impair the liberal and beneficial provisions of our code of civil procedure.

The name given a pleading or motion is of little or no importance. This court has often decided that calling a pleading an answer or a counter-claim, does not make it such, but that whether the pleading be the one or the other, will be determined from the material allegations therein contained. It has been very many times declared that the name ■bestowed upon a thing, by statute, does not determine the character of the thing. The name is of little importance in any case; the statements and purpose always of prime importance. Things are not to be judged of by their names, but by their essential and substantial qualities.

The frame of appellant’s motion," the substantive parts of it, and the evident purpose, are so plain and manifest that there could not have been the remotest possibility of mistaking the object sought to be attained, or the relief which ought to have been granted. These are matters of substance, and ought not to be overborne by errors in form.

Entertaining the views expressed, no course is left me but that of dissenting from the opinion of the majority.  