JULES S. WEIL, APPELLANT/CROSS-APPELLEE,
v.
JEROME T. WEIL, INDIVIDUALLY, AND AS TRUSTEE; GEORGE J. PERSIS AND ROSE M. PERSIS, APPELLEES/CROSS-APPELLANTS
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The court affirmed the trial court's decision to set aside a default and its finding of no undue influence, but reversed the finding that a deed was void because that issue was not properly raised.
Appellant appealed the trial court's decision to set aside a default and its finding that a property conveyance was not made under undue influence. Ap…
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BOOTH, JOHN W., Associate Judge.
Appellant appeals whether the trial court abused its discretion in: (1) setting aside the default entered by the clerk against appellee Jerome T. Weil and then proceeding to trial on the merits, and (2) determining that appellant’s conveyance of real property to appellee Jerome T. Weil, as trustee, was made without undue influence or duress. We affirm on those points.
Appellees cross-appeal the trial court’s finding that the deed executed from appellee Jerome T. Weil, as trustee, to the appellees Persis was null and void. The issue of whether or not such deed was a conditional delivery was neither presented to the trial court in the pleadings nor tried during the course of the trial court’s proceedings. Resolution of that issue would require evidence different from that which was required for proof of the issues that were presented in the pleadings of the parties.
Therefore, the trial court’s findings of fact contained in paragraphs (b) through (e) of its order rendered August 22, 1979, are hereby stricken and the trial court’s adjudications contained in paragraphs II through IV of that order are reversed. The parties may argue those matters if they are properly pled in some subsequent proceeding.
AFFIRMED IN PART; REVERSED IN PART.
COBB, J., concurs.
DAUKSCH, C. J., concurs in result only.