Clouse v. Peden

• Decision Date: 25 January 1962
• Docket Number: No. 2,No. 19453,19453,2
• Citation: 179 N.E.2d 586,132 Ind.App. 649
• Parties: Daniel P. CLOUSE, Jr., by his next friend, Daniel P. Clouse, Sr., Appellant, v. William PEDEN, Appellee
• Court: Indiana Appellate Court

Page 586

179 N.E.2d 586

132 Ind.App. 649

Daniel P. CLOUSE, Jr., by his next friend, Daniel P. Clouse, Sr., Appellant, v. William PEDEN, Appellee.

No. 19453.

Appellate Court of Indiana, Division No. 2.

Jan. 25, 1962.

John F. Townsend, Earl C. Townsend, Jr., Townsend & Townsend, Indianapolis, Wernle & Ristine, Crawfordsville, for appellant.

Edgar W. Bayliff, Cook, Cook, Bayliff & Mahoney, Kokomo, John R. Berry, Foley & Berry, Crawfordsville, for appellee.

BIERLY, Judge.

This is an action for damages instituted in the Montgomery Circuit Court by the appellant against the appellee. Trial was had by a jury and after appellant had submitted his case, appellee moved the court to direct the jury to return a verdict for appellee. The court sustained this motion and directed the jury to return a verdict for the appellee which verdict the jury duly returned.

Appellant thence filed a motion for a new trial which was overruled by the court. In due course this appeal was perfected.

The transcript discloses no judgment on the verdict even though a motion by appellee so requested. Said transcript is certified as being a true and correct copy of the record, hence we assume no judgment was entered.

The 1958 Revision of the Supreme Court, Rule 2-3 provides:

'No appeal will be dismissed as of right because the case was not finally disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, suspend consideration until disposition is made of such issues * * *.'

Taking cognizance of this ruling, we, at our discretion, now suspend consideration of this appeal until such time as the Montgomery Circuit Court finally disposes of the issues involved in this cause by the entry of an appropriate judgment on the verdict of the jury.

The Clerk of the Montgomery Circuit Court of Montgomery County, Indiana, is hereby ordered to certify a copy of such judgment when entered, to the Clerk of this Court, and the same is hereby ordered thereupon to become a part of the transcript of the record heretofore filed in this appeal. Lawrence v. Pennsylvania Railroad Company (1960), 130 Ind.App. 18, 168 N.E.2d 74.

KELLEY, P. J., and GONAS and PFAFF, JJ., concur.