Cleavenger v. Rueth

• Decision Date: 01 October 1962
• Docket Number: No. 1,No. 19420,19420,1
• Citation: 134 Ind.App. 18,185 N.E.2d 305
• Parties: Thomas H. CLEVAVENGER, Administerator with the Will Annexed of the Estate of Lurine B. App, Deceased, and Thomas H. Cleavenger, Administrator with the Will Annexed of the Estate of John M. App, Deceased, Appellants, v. Ernest RUETH, Appellee
• Court: Indiana Appellate Court

Page 305

185 N.E.2d 305

134 Ind.App. 18

Thomas H. CLEVAVENGER, Administerator with the Will Annexed of the Estate of Lurine B. App, Deceased, and Thomas H Cleavenger, Administrator with the Will Annexed of the Estate of John M. App, Deceased, Appellants, v. Ernest RUETH, Appellee.

No. 19420.

Appellate Court of Indiana, Division No. 1.

Oct. 1, 1962.

Owen W. Crumpacker, Theodore M. Gemberling, Lowell E. Enslen, Harold Abrahamson, Crumpacker, Gemberling & Enslen, Crumpacker, Burbach & Abrahamson, Hammond, for appellants.

Tinkham, Beckman & Kelly, Hammond, for appellee.

RYAN, Judge.

This was an action by the appellee against the appellants for money due under a contract for the construction of a building. Special findings of fact and conclusions of law were stated, and a judgment rendered in favor of the appellee. From such judgment the appellants appealed, and assign as error the overruling of their motion for a new trial, which motion contains some sixteen (16) specifications of error; that the trial court erred in its conclusion of law #1; that it erred in its conclusion of law #2; and that the trial court erred in entering separate judgments in favor of the plaintiff and against each of the defendants.

The judgment reads:

'It IS, THEREFORE, CONSIDERED AND ADJUDGED that the plaintiff, Ernest Rueth, recover from the defendant, Lurine B. App, the sum of Ten Thousand Six Hundred Eight Dollars seven cents ($10,608.07), that the plaintiff, Ernest Rueth, recover from the estate of John M. App the sum of Six Thousand Dollars ($6,000.00), and that the total recovery of the plaintiff, Ernest Rueth is limited to Ten Thousand Six Hundred Eight Dollars seven cents ($10,608.07), together with his costs laid out and expended herein in this cause.

'APPROVED:

'SIGNED John G. Baran, Judge

'Lake Superior Court Room 2'

A judgment implies the final decision of a court of competent jurisdiction in which the rights of the parties involved in the controversy have been judiciously settled, 17 J.L.E. Judgments § 1, and

'* * * 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.' Pokraka v. Lummus Co. (1951), 230 Ind. 523, 528, 104 N.E.2d 669, 671.

It should be pointed out that the appellants made no motion to modify the judgment in the lower court, and the general rule is that the form or substance of a judgment can not first be questioned here but the question must first be presented to the court below by a motion to modify. Diane Company, Inc., etc., et al. v. Beebe (1960), 131 Ind.App. 161, 145 N.E.2d 20, 169 N.E.2d 542.

However, notwithstanding the absence of a motion to modify said judgment, we are confronted with the judicial duty of determining the several issues and...