City of East Chicago v. State ex rel. Pitzer

• Decision Date: 22 March 1949
• Docket Number: 28359.
• Citation: 84 N.E.2d 588,227 Ind. 241
• Parties: CITY OF EAST CHICAGO et al. v. STATE ex rel. PITZER et al.
• Court: Indiana Supreme Court

84 N.E.2d 588

227 Ind. 241

CITY OF EAST CHICAGO et al. v. STATE ex rel. PITZER et al.

No. 28359.

Supreme Court of Indiana

March 22, 1949

Appeal from Newton Circuit Court; Newell A. Lamb, Judge.

Loyd J. Cohen, of East Chicago, Howard Hiestand, of Kentland, and Allen P. Twyman, of East Chicago, for appellants.

Jay E. Darlington, of Hammond, for appellees.

YOUNG Judge.

The relators brought this action against the City of East Chicago and its named officers for the purpose of seeking a writ of mandamus to require the appellants to recognize relators as members of the fire force of the City of East Chicago.

After considerable delay the case was tried in an adjoining county and the court found for the relators and entered the following decree:

'Now Therefore, It is finally ordered, adjudged and decreed that defendants are each hereby mandated and commanded to recognize each of the relators as now being, and having been ever since January 1, 1939, members of the fire force, with the rank of pipemen, in good standing, of the City of East Chicago, Indiana; and to allow relators to enjoy now and hereafter all the rights, privileges, status and benefits pertaining to such membership, including equal use of the physical facilities of the fire stations, the right to continue performance of their duties as such members without discrimination or obstruction by respondents, the right to receive the same compensation as other pipemen of said force and the right to participate in the firemen's pension fund of said city, their benefits and retirement rights under said fund to be based upon and dated from the said beginning of their membership in said fire force, January 1, 1939 provided that relators shall pay into said fund the same amounts of money paid by other pipemen from January 1, 1939 forward. And it is further ordered that respondents shall each do and perform all those several acts and functions required of them by law with reference to members of said fire force such as relators have been adjudged to be, and also do all those acts which are necessary and incidental to carrying out and consummating the duties above mandated; and this mandate shall remain binding upon the successors in office and of each of them'.

The City and its officers appealed. The facts are not in dispute and the case turns upon a construction of § 159, Ch. 129, of the Acts of the Indiana General Assembly of 1905, § 48-6102 Burns' 1933, but before reaching the merits of the case we are confronted by appellee's contention that this court is without jurisdiction of this appeal because the transcript was lodged in this court too late. This position is predicated on the following facts: On December 4, 1946, the court made the following entry in its record in this case, 'This cause having been taken under advisement, the court, being duty advised in the premises, now finds for the plaintiff and that the allegations of the plaintiff's complaint are true, and that the relief prayed for in the complaint should be granted. Parties are granted ten days within which to submit proper form of order herein.' No form of order was submitted within ten days and no further action was taken in the case until January 24, 1947, when the court again made an entry finding for the relators. It found the facts in detail and in connection with this finding entered the decree from which this appeal is taken.

A motion for a new trial was filed on February 15, 1947, and was overruled on June 14, 1947, and the transcript and assignment of errors was filed in this court on September 11, 1947. It is the contention of appellee that the entry of December 4 constituted a decision of the case and that appellant's time for filing a motion for a new trial started to run at that time, but that the motion was not filed within 30 days from that date.

If appellee is right in its contention that the entry of December 4, 1946, constituted a decision of the case, then the motion to dismiss should be sustained, but we cannot agree with appellee's contention in this respect. It is apparent from the language of the entry that it was merely preliminary to the real decision which was to be incorporated in a formal order later to be submitted by the parties. It was in a manner interlocutory and we regard it as a direction to counsel to prepare a final order and decree rather than a final decision. McClelland v. McClelland, 1932, 170 Wash. 170, 15 P.2d 941, 943.

Until final judgment was rendered the case was in fieri, and the court could change its decision with or without cause. Cooley's Blackstone, Fourth Edition, Vol. II, p. 1155, Book III, 407; Mak-Saw-Ba Club v. Coffin, 1907, 169 Ind. 204, 208, 82 N.E. 461; Thompson et al. v. Connecticut Mutual Life Insurance Company et al., 1894, 139 Ind. 325, 356, 38 N.E. 796; Dunn v. Starke County Trust and Savings Bank, Exr., 1933 (Transfer denied), 98 Ind.App. 86, 89, 184 N.E. 424.

In Mak-Saw-Ba Club v. Coffin, supra, this court said that so long as a cause is in fieri intermediate orders are subject to modification or rescission by the court and to this proposition cited Boonville Nat. Bank v. Blakey, 1906, 166 Ind. 427, 76 N.E. 529; Elliott App.Proc. § 83; 15 Ency. Pl. and Pr. 352; 23 Ency. Law and Proc. 905.

In Thompson et al. v. Connecticut Mutual Life Insurance Company et al., supra [139 Ind. 325, 38 N.E. 805], it was said by this court: 'We are therefore of opinion that the trial judge should in all cases be permitted to amend his special findings and conclusions of law at any time before final judgment, and during the period within which a bill of exceptions containing the evidence may be filed, * * *.'

In Dunn v. Starke County Trust and Savings Bank, Exr., supra [98 Ind.App. 86, 184 N.E. 425], the court used the following language: 'The finding is intended to be a finding by the trial court. The trial court can change its findings or amend them in any way it sees fit at any time before judgment is rendered. This can be done by the court on its own motion, or upon motion, written or oral, of the attorneys in the case. The findings in their final form, when judgment is rendered, are the findings of the court, regardless of whether or not they were changed. * * *'

On January 24, 1947, this case was still in fieri. Final judgment had not been rendered. On that day a new finding was entered upon which the decree entered at the same time was based. Even if the entry of December 4, 1946 had been more than a mere direction to counsel, it still would be subject to change by the court until judgment was rendered and if changed the later finding became the finding of the court. In our opinion the controlling finding in this case was the finding of January 24, 1947, and the date for filing a motion for a new trial ran from that time and the motion for a new trial was filed within time and this appeal was perfected in time and this court is not without jurisdiction as contended by appellee.

The record shows that on September 1, 1938, the city council had passed a budget and tax ordinance appropriating funds for the payment of 68 firemen in 1939, and fixing the salaries of firemen and levying taxes for all city purposes. Prior thereto there had been only 58 city firemen and no new firemen had been appointed prior to the meeting of the Board of Public Works and Safety on December 31, 1938. So far as the record shows there had never been an ordinance of the city council fixing or limiting the number of firemen.

On January 1, 1939, there was to be a change of city administration and on December 31, 1938, a meeting of the Board of Public Works and Safety of the City of East Chicago was held. The minutes of that meeting show that it was held in the office of the board in the City Hall at 10:30 o'clock A.M., with all members of the board present. After showing the reading and approval of the minutes of the previous meeting the minutes read as follows: 'A motion was made by Campbell with Stepanovich that the following: Peter Tumbas, Claude Farmer, Lewis G. Pitzer, Donald Strohm, Albert Demeter, Andrew J. Reppa, Ernest Potesta, Louis Vernocy, Gene Bednarowicz, John Jakush, who have filed applications for positions on the East Chicago Fire Department and have filed medical certificates showing that they are physically qualified are hereby appointed as pipemen on the Fire Department of the City of East Chicago, Indiana, the appointments to become effective on January 1st, 1939, at 12:01 A.M. and said appointees are ordered to report for duty to the Chief of the Fire Department, Ivan Friend, at the Central Fire Station at 12:01 A. M. on January 1st, 1939.' The minutes then show the unanimous adoption of this motion by the affirmative vote of all members of the board. There were then two items of routine business shown by the minutes and the meeting adjourned. These minutes are signed by all three members of the board and attested by the Clerk of the board.

The record also shows that each of the relators had made a written application for the position of fireman, and that each had obtained and presented a certificate of satisfactory physical condition by a physician. All of the relators reported for duty to the fire chief a little before midnight on December 31, 1938, and delivered to him letters from the Clerk of the Board of Public Works and Safety dated December 31, 1938, notifying the chief of their appointment. He told them to remain for an hour and go home and report the next morning, which they did. The next morning they were notified by a new fire chief, appointed by the new administration, that he would not recognize them as firemen and they were not permitted to perform any duties of a fireman and were barred from the sleeping quarters...