Amacher v. Johnson

• Court: Indiana Supreme Court
• Writing for the Court: Monks, C. J.
• Citation: Amacher v. Johnson, 174 Ind. 249, 91 N.E. 928 (Ind. 1910)
• Decision Date: 24 May 1910
• Docket Number: 21,539
• Parties: Amacher et al. v. Johnson

91 N.E. 928

174 Ind. 249

Amacher et al. v. Johnson

No. 21,539

Supreme Court of Indiana

May 24, 1910

From Allen Circuit Court; E. O'Rourke, Judge.

Action by Roswell O. Johnson against Christian Amacher and others. From a judgment for plaintiff, defendants appeal.

Reversed.

L. C DeVoss and C. J. Lutz, for appellants.

Hooper & Lenhart, Heller & Son and John C. Moran, for appellee.

OPINION

Monks, C. J.

Appellee brought this action under § 589 Burns 1908, § 563 R. S. 1881, by filing a complaint for a new trial in the Adams Circuit Court, assigning causes for a new trial discovered after the term at which the verdict was returned and judgment rendered thereon in favor of appellants. Appellants' demurrer for want of facts to the complaint was overruled by the court. The venue of the cause was changed to the court below, where a trial resulted in a finding in favor of appellee, and, over a motion by appellants for a new trial, judgment against them granting appellee a new trial of said cause was rendered.

Appellants by the assignment of errors, challenge the sufficiency of the complaint for want of facts and call in question the action of the court in overruling their demurrer to the complaint.

Appellee insists that no question is presented as to the sufficiency of the complaint, because "appellants demurred separately to the complaint, and the assignment of errors calling in question the action of the court in overruling said demurrer, is joint." Louisville, etc., R. Co. v. Smoot (1893), 135 Ind. 220, 33 N.E. 905. It is not necessary to determine whether said demurrer is the joint or several demurrer of appellants, for the reason that the sufficiency of the complaint is challenged by an independent assignment of errors in this court that "the complaint does not state facts sufficient to constitute a cause of action."

It appears from the complaint that appellants brought a proceeding before the board of commissioners of Adams county on April 16, 1904, to establish a public ditch; that such proceedings were had that said ditch was established by said board of commissioners; that appellee, Johnson, who was a defendant in said proceeding, appealed said cause to the Adams Circuit Court, where a trial of said cause resulted in a finding in favor of the petitioners for said ditch, and over a motion for a new trial by Johnson a judgment establishing said ditch was rendered; that the court gave appellee time within which to prepare and file a bill of exceptions; that "the evidence given in said cause was taken down by a shorthand reporter appointed by the court, but, on account of his incompetency either to take down said evidence or to copy it after it was taken, he was unable to furnish a copy of the evidence given at the trial, and thereby prevented appellee from taking the evidence to the Supreme Court on appeal;" that "said inability of the reporter and that he was unable to furnish a copy of the evidence were not known or discovered by appellee until after the term at which the verdict in said cause was rendered." Many objections are urged against the sufficiency of the complaint, but the controlling question is whether the failure of the shorthand reporter to furnish a copy of the evidence, on account of his inability to take the evidence or copy it after it was taken, is a cause for a new trial under our statute.

The statute providing for granting new trials is as follows: "A new trial may be granted in the following cases: First. Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court, or abuse of discretion, by which the party was prevented from having a fair trial. Second. Misconduct of the jury or prevailing party. Third. Accident or surprise, which ordinary prudence could not have guarded against. Fourth. Excessive damages. Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property. Sixth. That the verdict or decision is not sustained by sufficient evidence, or is contrary to law. Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. Eighth. Error of law occurring at the trial and excepted to by the party making the application. And the court, in granting new trials, may allow the same at the costs of the party applying therefor, or on the costs abiding the event of the suit, or a portion of the costs, as the justice and equity of the case may require, taking into consideration the causes which may make such new trial necessary." § 585 Burns 1908, § 559 R. S. 1881.

Section 589 Burns 1908, § 563 R. S. 1881, under which this proceeding was brought, reads as follows: "Where causes for new trial are discovered after the term at which the verdict or decision was rendered, the application may be made by a complaint filed with the clerk, not later than the second term after the discovery, on which a summons shall issue, as on other complaints, requiring the adverse party to appear and answer. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the court upon the evidence produced by the parties. But no such application shall be made more than one year after the final judgment was rendered."

It is evident that a new trial cannot be granted under § 589, supra, for causes discovered after term, unless they are specified as causes for a new trial in § 585, supra. It is clear from a careful reading of the several clauses of § 585, supra, which specify the causes for a new trial, that they have reference to matters occurring before or during the trial of the cause. It certainly cannot be said that the causes for a new trial specified in § 585, supra, are broad enough to include the failure of the shorthand reporter to furnish a copy of the evidence, whether on account of inability or any other cause. Neither can it be said that the failure of the shorthand reporter to furnish a copy of the evidence given in the drainage case in any way prevented a fair and impartial trial of said cause. We need not stop to consider what authority the trial court possessed in said ditch proceeding to settle the bill of exceptions containing the evidence from the best sources at hand, as by hearing evidence, recalling the witnesses or otherwise, for the reason that no effort was made so to proceed; but appellee rested upon the contention that the inability of the shorthand reporter to furnish a transcript of the evidence was sufficient reason for granting a new trial.

We conclude, therefore, that the failure of the reporter, from inability or other cause, to furnish a transcript of the evidence was not a ground for a new trial under §§ 585, 589, supra; Butts v. Anderson (1907), 19 Okla. 367, 91 P. 906; ...