Kelly v. Gullickson

Trusts ? Findings ? When Conclusive ? Pleading and Practice ? Defective Complaint may be Cured by Answer. Trusts ? Real Party in Interest ? Findings ? Conflicting Evidence ? Affirmance. 1. In an action for an accounting and to have defendant bank declared trustee of a resulting trust, held under the rule that findings made on conflicting evidence will be set aside only where the evidence preponderates against them, that the finding that plaintiffs husband, and not she, was the real party in interest was correct, and that therefore the court properly rendered judgment in favor of defendant under section 9067, Revised Codes of 1921. Pleading and Practice ? When Pleading Deemed Amended to Conform to Proof. 2. Where defendant, after admitting in his answer a vital allegation in the complaint, is permitted without objection to depart therefrom in his evidence and the matter is thereafter treated as an issue in the case, the answer will be deemed to have been amended to conform to the proof. Same ? Defective Complaint may be Cured by Answer. 3. Omissions from or defects in the complaint may be supplied or cured by the answer. Equity ? Findings ? When Conclusive. 4. The findings in an equity case will not be set aside for insufficiency of the evidence to support them unless the evidence preponderates against them.