Davis v. Thiede

• Decision Date: 27 January 1965
• Docket Number: No. 20155,No. 2,20155,2
• Citation: 203 N.E.2d 835,138 Ind.App. 537
• Parties: Wilbur Eustace DAVIS, Jr., Appellant, v. Stephen Frank THIEDE, Julia Thiede and
• Court: Indiana Appellate Court

Page 835

203 N.E.2d 835

138 Ind.App. 537

Wilbur Eustace DAVIS, Jr., Appellant, v. Stephen Frank THIEDE, Julia Thiede and No. 20155.

Appellate Court of Indiana, Division No. 2.

Jan. 27, 1965.

Rehearing Denied Feb. 11, 1965.

[138 INDAPP 538]

Wilbur Eustace Davis, Jr., pro se and of counsel.

Dix, Dix, Patrick & Ratcliffe, D. Joe Gabbert, Terre Haute, Tennis & Cochran, Wendell Tennis, Sullivan, for appellees.

HUNTER, Judge.

This is an appeal from an action brought by appellant-plaintiff against appellees to recover damages for injury to his minor child, allegedly resulting from the wanton operation of appellees' automobile.

The appellant appealed directly to the Supreme Court, alleging that certain constitutional questions were presented. The Supreme Court decided that,

'The only question presented is whether or not the trial court erred in certain rulings on the pleadings filed in this cause and in entering the judgment complained of. Those questions can and should be determined by the Appellate Court as there is no constitutional question here that could [138 INDAPP 539] not be averred in every case that might be decided in the courts below. Fechtman v. Stover (1963), Ind., 194 N.E.2d 623.' Davis v. Thiede (1964), Ind., 197 N.E.2d 173, 174, 3 Ind.Dec. 169, 170.

We are deciding this case as presented to the Supreme Court and without benefit of oral argument in the absence of an appellant's request for the filing of an amended brief or request for oral argument before this court. The only request for oral argument appearing of record was filed by the appellee when this cause was pending before the Supreme Court, which request was not granted. Our consideration of this cause is accordingly limited to those errors of law properly presented by the appellant in the brief filed before transfer to this court, which transfer was ordered on March 13, 1964. Davis v. Thiede, supra.

The proceedings in the trial court pertinent to our consideration are as follows: Upon the filing of a second complaint entitled the 'second amended complaint', by appellant on December 4, 1959, the court ordered appellees to answer on or before January 11, 1960. Before the expiration of the rule, on December 11, 1959, appellees filed a motion to dismiss the second amended complaint pursuant to Sec. 2-901, Burns' 1946 Replacement, 1964 Cumulative Pocket Supplement.

Appellees' motion to dismiss alleged that appellant, in the construction of his second complaint, had not complied with the previous court order directing the appellant to modify his original complaint. The appellant has made no showing by his brief or indeed by the transcript indicating whether his 'second amended complaint' did or did not conform to the judge's ruling on the original complaint ordering him to amend said complaint; and the duty is on the appellant to affirmatively demonstrate error of law by the trial court in any one of its rulings in view of our Supreme Court's holding in its order of transfer of this cause to this court. We are thus hampered in this opinion by this failing in appellant's brief, as can be seen from the remaining proceedings of the trial court that must be considered.

Be that as it may, the court saw fit to overrule the motion to dismiss on April 13, 1960, and the appellees were at this date again ruled to answer by the court within ten days.

[138 INDAPP 540] Appellees, on April 21, 1960, before this rule elapsed, filed another motion which was a joint motion under Supreme Court Rule 1-3A to strike and amend certain portions of the 'second amended complaint'. This motion was apparently directed toward the same defects that were present in the original complaint. The court sustained this motion on May 12, 1960. Later, on June 7, 1960, the court overruled the appellant's motion for a judgment on the pleadings which had been filed May 10, 1960. Such motion essentially alleged that appellant was entitled to a judgment for failure of appellees to answer the complaint by admitting or denying the allegations of the complaint. After overruling appellant's motion and sustaining appellees' last motion, the judge then ordered appellant to plead over on May 12, June 7, September 6, 1960, and January 10, 1961, in conformance with his ruling on appellees' motion filed pursuant to Supreme Court Rule 1-3A, supra. Appellant would not plead over, and upon motion for judgment by appellees, the court entered default judgment against appellant on February 14, 1961 which reads in part as follows:

'* * * And now the Court being duly and fully advised in the premises now sustains the motion of the defendants filed February 7, 1961, for default of plaintiff for his failure to file amended complaint on or before January 23, 1961 as heretofore ordered by this Court and set for hearing on this date and hour. The Court further finds that the plaintiff should pay the costs of this action.

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that on plaintiff's failure to comply with rule of this Court made january 10, 1961, ordering and directing the plaintiff to file his amended complaint on or before January 23, 1961, that plaintiff's complaint (plaintiff's second amended complaint, which has been referred to herein as plaintiff's complaint) be and the same is hereby stricken from the record, and that plaintiff take nothing by his complaint.'

Appellant assigns twelve (12) errors on this appeal. Alleged errors numbered 10, 11 and 12 will not be considered [138 INDAPP 541] because they seem to present constitutional questions, which are without merit. See Davis v. Thiede, supra. Appellant seriously advances error No. 1, with assignment 1-12 purportedly grouped within said error No. 1. Thus, we have the question of whether the trial court erred in overruling appellant's motion for judgment on the pleadings.

Appellant's argument for reversal is unique and somewhat complex. He asserts that appellees' joint motion under Supreme Court Rule 1-3A, supra, was necessarily waived by appellees' failure to join and file it with the first motion to dismiss because the motion to dismiss is a dilatory plea; and since the motion to dismiss is a dilatory plea, Supreme Court Rule 1-3A, supra, requires this plea to be filed with all other such motions. He contends that such second joint motion was therefore a nullity because it was not filed with the first motion and was thus waived; and as a result, the judge as a matter of law could not rule on it. Appellant therefore advances the proposition that since there was a 'rule to answer' and no answer was filed, but rather an allegedly void motion instead, appellant was entitled as a matter of law to a judgment on the pleadings. We are thus presented with two questions:

(1) Is a motion to dismiss, filed pursuant to the authority of Sec. 2-901, supra, a dilatory pleading within the contemplation of Supreme Court Rule 1-3A, supra?

(2) May the trial judge accept other pleadings from a defendant besides an answer admitting or denying the facts in the complaint after he has ordered defendant to answer the complaint?

We must first determine whether the motion to dismiss is a dilatory pleading such as one that must be joined and filed with other pleadings that come within the ambit of Supreme Court Rule 1-3A, supra. Dilatory pleas are those within

'A class of defenses at common law, founded on some matter of fact not connected with the merits of the case, [138 INDAPP 542] but such as might exist without impeaching the right of action itself. They were either pleas to the jurisdiction, showing that, by reason of some matter therein stated, the case was not within the jurisdiction of the court; or pleas in suspension, showing some matter of temporary incapacity to proceed with the suit; or pleas in abatement, showing some matter for abatement or quashing the declaration.' Black's Law Dictionary (Fourth Fdition). (Our emphasis.)

Supreme Court Rule 1-3A, supra, recognizes that certain motions are 'dilatory', such as:

'* * * a motion to separate a pleading into rhetorical or pleading paragraphs; a motion to make a pleading more specific; a motion to strike out parts of a pleading; and a motion to require the pleading of facts to sustain conclusions, * * *.'

The above list is not necessarily all-inclusive. Our courts have held, for example, that a plea in abatement is a dilatory plea. Grider v. Scharf (1947), 225 Ind. 251, 266, 73 N.E.2d 75, 749; Gaddis v. Barnes, Jr., et al. (1953), 123 Ind.App. 624, 112 N.E.2d 881.

However, the above-mentioned motion to dismiss directed to the second amended complaint is apparently not such a dilatory motion that is contemplated by Supreme Court Rule 1-3A, supra. The motion was filed under the authority of Sec. 2-901, supra, which provides in part that:

'An action may be dismissed without prejudice: * * * Fifth. By the Court, for disobedience by the plaintiff of an order concerning the proceedings in the action.' (Acts 1881 [Spec. Sess.], ch. 38, Sec. 433, p. 240; 1961, ch. 224, Sec. 1, p. 535.)

The Supreme Court has held that a motion to dismiss under Sec. 2-901, supra, is not a plea in suspension, or abatement, but a plea to definitely end the action. State ex rel. Hurd v. Davis (1949), 227 Ind. 93, 101, 84 N.E.2d 181. The effect of a dismissal under a motion to dismiss is [138 INDAPP 543] well...