Trook v. Trook

¶1On Petition for a Rehearing.

¶2Appellant, by his petition for a rehearing .and briefs supporting the same, insists that the court erred in its original opinion in holding: (1) that appellant >vas not entitled to a new trial as of right; and (2) that the Grant Superior Court had authority to set aside an order of the Grant Circuit Court granting a new trial as of right after the cause was’ transferred to the superior court by agreement of the parties.

¶34. As to the latter contention, the argument now advanced in this behalf is in the main the same as advanced

¶4by appellant originally, and what we have said in our former opinion fully covers such questions.

¶5*2805.*279As to the first proposition, appellant contends that, notwithstanding much is said in the complaint to the effect that appellant took title to the real estate in question in trust *280for appellee and a trust is asked to be declared in their favor, the real controversy involves the title and possession of the real estate. We are of the opinion that the complaint states a substantive cause of action on the theory that appellant held the real estate in trust for appellees and that the court should have so declared upon the facts pleaded if they were established, and which the court did so find and so declare. Yet, if it be conceded for the sake of argument that the complaint does not state a substantive cause of action in this respect, and that it does state a cause of action involving the question of title and possession of real estate as to' entitle appellant to a new trial as of right, if this cause of action stood alone, appellant would not be entitled to a new trial as of right in this cause.

¶6The decree in the case at bar is quite comprehensive in its scope. It adjusted the entire transaction mentioned in the original opinion as between the parties, not alone between appellant and appellees, but as between the appellees, as-appellant was directed to convey a part of the real estate to the appellees jointly and a part to them in severalty, and in the same decree the court found that appellant was indebted to appellees in the sum of $175 for money that came into his hands while acting as trustee for the appellees, for which a personal judgment was rendered against him. Likewise it was found that appellees were entitled to receive the sum of $312 from the Flint Elevator Company for grain sold from the real estate in controversy by appellant in the course of his trust.

¶7The personal judgment rendered for $175 against appellant and the finding that the appellees were entitled to the sum of $312 due from the Flint Elevator Company were within the issues, as the complaint in this respect stated a substantive cause of action for an accounting. Hence, the complaint stated two substantive causes of action even on appellant’s .theory, one of which would, and the other *281would not, entitle appellant to a new trial as of right. The new trial as of right was properly denied. Henry v. Frazier (1913), 53 Ind. App, 605, 100 N. E. 770.

¶86. Appellant for the first time now seeks to raise the question that, hy virtue of the statute of the state in reference to the creation of trusts in real estate, the complaint

¶9could not under the facts pleaded he held sufficient

¶10on the theory of establishing a trust in appellant to the real estate in favor of appellees. This question, not having been heretofore raised, cannot he considered upon a petition for a rehearing.

¶11The petition for a rehearing is overruled.

¶12Note.—Reported in 113 N. E. 730. See under (1-3) 29 Cyc 1037-1043; (4) 40 Cyc 176.