Pokraka v. Lummus Co.
| Decision Date | 27 March 1952 |
| Docket Number | No. 28902,28902 |
| Citation | 104 N.E.2d 669,230 Ind. 523 |
| Parties | POKRAKA et al. v. LUMMUS CO. |
| Court | Indiana Supreme Court |
T. Joseph Sullivan, Hammond, for appellants.
Kenneth Call, Gary, Riley, Reed, Murphy & McAtee and Jesse W. McAtee, East Chicago, for appellee.
This is an action for property damage by appellants (plaintiffs below) against appellee, defendant, resulting from subsidence of appellants' land and building thereon allegedly due to surplus water from a broken water main in a trench opened by certain excavation operations of appellee.
Trial by the court, without the intervention of a jury, was begun on December 15, 1948. The amended complaint is in two paragraphs, the first being for damages to the land on the theory of laterial support as an absolute right without consideration of negligence, and the second being for damages to the land and buildings thereon on the theory of negligence. At the close of plaintiffs' evidence, on January 12, 1949, appellee filed its motion for a finding for defendant on paragraph one of plaintiffs' amended complaint and on January 17, 1949 the court sustained said motion.
Appellee then filed its motion for a finding for defendant on paragraph two of the amended complaint, and on January 19, 1949 the court overruled this motion but entered judgment for defendant on paragraph one of the complaint. That part of said judgment which here applies is as follows:
'The court now enters judgment for defendant on ruling on motion of defendant to first paragraph of plaintiffs' amended complaint, as follows:
'It is therefore, Considered, Adjudged and Decreed by the court that the plaintiffs take nothing by reason of their first paragraph of plaintiffs' amended complaint.'
On January 31, 1949 the court entered judgment for the appellee on paragraph two of appellants' amended complaint.
Appellants' motion for a new trial was filed on February 18, 1949 which, it will be observed, was more than thirty days after January 17, 1949 but within thirty days after January 31, 1949, and from an order entered on November 21, 1949 overruling said motion for a new trial this appeal is prosecuted.
Two questions are presented for our consideration. First, whether the court erred in making two findings and entering two judgments during the trial, one judgment on January 19, 1949 and another on January 31, 1949; and, second, whether the court erred in overruling appellants' motion for a new trial.
First: It will be observed that the first paragraph of appellants' complaint was, by reference, incorporated into and made a part of the second paragraph of complaint. Section 2-1006, Burns' 1946 Replacement, Acts of 1917, ch. 27, § 1, p. 68.
That part of the second paragraph of complaint which incorporated the first paragraph by reference was not eliminated by the finding of the court for defendant on paragraph one of said complaint. The record discloses no motion by defendant to strike out such part of the second paragraph. It is apparent that both parties proceeded to trial on the second paragraph of complaint on the issues submitted thereby. It has been held by this court that parties must abide by a procedure which they have induced the court to follow. State ex rel. Cline v. Schricker, 1950, 228 Ind. 41, 45, 88 N.E.2d 746, 89 N.E.2d 547; State ex rel. Reiman v. Kimmell, 1937, 212 Ind. 639, 646, 647, 10 N.E.2d 911.
In the case at bar, while we do not decide whether, under the circumstances, paragraph one was properly incorporated in paragraph two, both parties proceeded to trial on the second paragraph of complaint without objection to its form, and they may not now complain that the proceedings had under the second paragraph of complaint were erroneous.
Since the court, in considering plaintiff's evidence in support of the second paragraph of complaint, of necessity, considered the questions raised by the first paragraph of complaint which was, by reference, incorporated in the second paragraph, its finding and ruling thereon was merged in the final judgment entered on January 31, 1949.
It is not presumed that the court will dispose of a case piecemeal by entering successive final judgments, and a judgment is not final unless it determines the rights of the parties in the suit, or a distinct and definite branch thereof, and reserves no further question or direction for future determination. Bozovichar v. State, Ind.Sup. 1952, 103 N.E.2d 680; Ebenezer Old People's Home v. Bernhard, 1935, 100 Ind.App. 636, 642, 196 N.E. 129; Ragle v. Dedman, 1910, 45 Ind.App. 693, 695, 91 N.E. 615; Home Electric Light and Power Co. v. Globe Tissue Paper Co., 1896, 145 Ind. 174, 175, 44 N.E. 191.
Appellants were not harmed nor were any of their rights prejudiced under the circumstances herein, and while we do not here propose to change the rules 'in the middle of the game' it is our considered opinion that where, as here, issues of fact are joined on a complaint of two or more paragraphs, and trial is by the court and during the trial the court, at different times, makes and enters separate decisions on any one or more of said paragraphs of complaint, there should be, at the discretion of the aggrieved party, but one motion for a new trial which can be filed at any time within thirty days from the date on which the last of such decisions is entered. This rule should apply whether said paragraphs of complaint state separate and distinct causes of action or are the statement of different theories of the same cause.
Second: Appellants' motion for a new trial contains two specifications: (1) The decision of the court is not sustained by sufficient evidence; (2) The decision of the court is contrary to law.
The first specification in the motion for a new trial presents no question to this court because the burden was upon appellants to establish the allegations of their complaint, and a decision against them cannot be attacked upon the ground that there is insufficient evidence to sustain it. State ex rel. Flaugher v. Rogers, 1948, 226 Ind. 32, 37, 77 N.E.2d 594; Wright v. Peabody Coal Co., 1948, 225 Ind. 679, 686, 77 N.E.2d 116; McGuire v. Indianapolis Broadcasting, Inc., 1945, 223 Ind. 505, 511, 61 N.E.2d 645; Rowe v. Johnson, 1945, 223 Ind. 289, 291, 60 N.E.2d 529; Wilson v. Rollings, 1938, 214 Ind. 155, 158, 14 N.E.2d 905; McFarland v. Christoff, 1950, 120 Ind.App. 416, 421, 92 N.E.2d 555; Losche & Sons v. Chas. Williams & Associates, 1948, 118 Ind.App. 392, 395, 78 N.E.2d 447; Krull v. Pierce, 1947, 117 Ind.App. 638, 642, 71 N.E.2d 617; Heffington v. Tichenor, 1946, 116 Ind.App. 475, 477, 65 N.E.2d 500; Wadler v. Mogul Rubber Corporation, 1945, 116 Ind.App. 152, 154, 61 N.E.2d 472; Smith v. Strock, 1945, 115 Ind.App. 518, 521, 60 N.E.2d 157.
Appellants may, however, properly assert that the decision of the trial court denied them the...
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...charge that the verdict is contrary to law is subject to the general rule stated by our Supreme Court in Pokraka et al. v. Lummus Co.,230 Ind. 523, 104 N.E.2d 669 (1952) that we will consider only the evidence most favorable to Appellee and it only where the evidence is without conflict and......
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...thereto were erroneous. State ex rel. Cline v. Schricker, 1950, 228 Ind. 41, 88 N.E.2d 746, 89 N.E.2d 547; Pokraka et al. v. Lummus Co., 1952, Ind. , 104 N.E.2d 669; State ex rel. Reiman v. Kimmell, 1937, 212 Ind. 639, 10 N.E.2d 911.' McKay v. Carstens, 1952, 231 Ind. 252, 256, 108 N.E.2d 2......
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Rocoff v. Lancella, 20599
...opposite conclusion, that the decision of the trial court or jury will be set aside as being contrary to law. Pokraka et al. v. Lummus Co. (1952) 230 Ind. 523, 532, 104 N.E.2d 669; Hinds, Executor of the Estate of Sickles, Deceased, etc., v. McNair et al. (1955) 235 Ind. 34, 129 N.E.2d 553.......
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