Bayman v. Farmers Mut. Fire Ins. Ass'n of Whitley Cnty.

• Decision Date: 15 February 1938
• Docket Number: No. 27010.,27010.
• Citation: 12 N.E.2d 945,213 Ind. 389
• Parties: BAYMAN v. FARMERS MUT. FIRE INS. ASS'N OF WHITLEY COUNTY.
• Court: Indiana Supreme Court

213 Ind. 389

12 N.E.2d 945

BAYMAN

v.FARMERS MUT. FIRE INS. ASS'N OF WHITLEY COUNTY.

No. 27010.

Supreme Court of Indiana.

Feb. 15, 1938.

Action by Roy E. Bayman against the Farmers Mutual Fire Insurance Association of Whitley County, Ind. From an order dismissing the cause, plaintiff appeals. Transferred from Appellate Court, under Burns' Ann.St.1933, § 4-218.

Appeal dismissed.Appeal from Whitley Circuit Court; Rob R. McNagny, Judge.

Kissinger & Kissinger, of Columbia City, and Arthur Low, of Fulton, for appellant.

Whiteleather & Bloom, of Columbia City, for appellee.

SHAKE, Judge.

This is an attempt to appeal from an order of the Whitley circuit court dismissing the appellant's cause of action. The original order of dismissal entered by the court is as follows: ‘The plaintiff herein having failed to comply with the order of the Court made by letter dated June 29th, 1935, which provided for filing of amended pleadings on or before August 1st, 1935, this cause is now dismissed at the plaintiff's costs. * * * to which plaintiff at the time objected and excepted, and the plaintiff is given and granted 30 days in which to file all bills of exceptions.'

Thereafter, the appellant filed a motion to vacate the order dismissing the cause and a petition to reinstate the same on the dockets of the court. A hearing was had, and the court made a further order, which is the one here complained of, to wit: ‘Come again the parties and this cause is now submitted to the court on the matter of the petition of the plaintiff to vacate judgment of dismissal and to re-instate the cause of action; and the court now hears the argument of counsel and considers the counter affidavits filed by the defendant, and upon due consideration and after hearing all the facts and evidence the Court now overrules the plaintiff's motion to vacate judgment of dismissal and reinstate this cause. To which ruling of the Court the plaintiff excepts and objects.’ (Italics ours.)

This appeal followed, and appellant assigns as error the action of the court below in dismissing the cause and in overruling his motion to set aside the dismissal and to reinstate the cause. The errors are separately assigned, but they may be considered together for the purposes of this opinion. The record contains no bill of exceptions.

It is a settled rule of appellate procedure in this state that on appeal the record is conclusive and imports absolute verity. Burton v. Ferguson, 1880, 69 Ind. 486;Smith v. Gustin, 1907, 169 Ind. 42, 80 N.E. 959,81 N.E. 722;Whisler v. Whisler, 1903, 162 Ind. 136, 67 N.E. 984,70 N.E. 152;Bau v. Short et al., 1929, 89 Ind.App. 17, 165 N.E. 560.

It will be noted that the order of the court appealed from affirmatively recites that appellant's motion to vacate the judgment of dismissal and reinstate the cause was denied upon due consideration and ‘ after hearing all the facts and evidence.’ We are bound by this recital in the record to conclude that the court did hear facts and evidence. Since the evidence is not before us, we cannot pass upon the question raised by this appeal.

The case of Kurtz v. Phillips, 1916, 63 Ind.App. 79, 113 N.E. 1016, 1018, was one to set aside a default and judgment on the ground of inadvertence,...