Summary
affirming injunction ordering removal of home that was being constructed in violation of restrictive covenants
Summary of this case from Depeyster v. Town of Santa ClausOpinion
No. 270A18.
Filed December 27, 1971.
TRIAL COURT — Special Findings of Fact. — In the absence of a request for a special finding of facts and conclusions of law the trial judge may make a mere general finding for one of the parties.
From the Putman Circuit Court, Francis N. Hamilton, Judge.
Appeal from an action in which Defendant-appellants were found to have violated a restrictive covenant and in which injunctions were granted against Defendant-appellants to enjoin the violations.
Affirmed by the Second Division.
Larry J. Wallace, of Indianapolis, for appellant.
Robert F. Wernle, Wernle, Ristine Milligan, of Crawfordsville, Lyon Boyd, of Greencastle, for appellee.
Defendant-appellants built a building on a lot they purchased on a conditional sales contract in Indian Hills Estates, a sub-division in Montgomery County on Lake Holiday. The trial court found it to be in violation of restrictive covenants and issued a prohibitory injunction against further construction and a mandatory injunction requiring removal within sixty days. Plaintiff-appellees are the owners of other lots in the subdivision. The Clearwater Land Company, Inc., defendant-appellee is the developer of the subdivision and the vendor of the lot. It filed an answer of disclaimer and made no defense but is enjoined along with the appellants. It has neither appeared nor filed any brief in this court.
On every issue and defense the evidence was in some aspects conflicting, but more importantly, the contradictory inferences which reasonably could have been drawn from it are many. The ultimate facts which emerge, accepting the evidence and drawing the inferences most favorable to plaintiffs, fully support the trial court's judgment and fail to disclose any abuse of discretion. To recite those facts in detail would add nothing worthwhile to the opinion. Nor will we weigh the evidence and substitute our own findings for those we must presume were made by the trial court. Doi v. Huber (1969), 144 Ind. App. 451, 457, 247 N.E.2d 103, 107, 17 Ind. Dec. 367, 372.
The trial court acted in conformity with the principles stated in Sorrentino v. Cunningham (1942), 111 Ind. App. 212, 39 N.E.2d 473; Schwartz v. Holycross (1925), 83 Ind. App. 658, 149 N.E. 699; and Fesler v. Brayton (1896), 145 Ind. 71, 44 N.E. 37, 32 L.R.A. 578.
Defendant-appellants raised affirmative defenses of laches, waiver, and acquiescence. They now complain that the trial court failed to make findings of fact on these issues and rely on Hutter v. Weiss (1961), 132 Ind. App. 244, 177 N.E.2d 339, a case in which there was a special finding of facts and conclusions of law. No request therefore was made in the case at bar and the trial judge properly made merely a general finding for the plaintiffs. Ind. Ann. Stat. § 2-2102 (Burns 1968), now superseded by Trial Rule 52. Horlock v. Oglesby (1967), 249 Ind. 251, 259, 231 N.E.2d 810, 12 Ind. Dec. 270.
The judgment is affirmed.
Hoffman, C.J., Sharp and Staton, JJ., concur.
NOTE. — Reported in 277 N.E.2d 173.