Equitable Life Assur. Soc. of U.S. v. Frank, 1269A256
| Decision Date | 01 July 1970 |
| Docket Number | No. 1269A256,1269A256 |
| Citation | 259 N.E.2d 706,147 Ind.App. 335 |
| Parties | The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. Herman R. FRANK, etc., Appellee. |
| Court | Indiana Appellate Court |
Gustav H. Dongus, Dongus, Ging, Stein & Cregor, Indianapolis, Lacey, Angel & Good, Kokomo, of counsel, for appellant.
Edward S. Mahoney, O'Mahoney, Mahoney & Simmons, Kokomo, R. Stanley Lawton, G. Daniel Kelley, Jr., Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.
ON APPELLEE'S MOTION TO DISMISS OR AFFIRM
This matter is before us on the Appellee's Motion to Dismiss or Affirm and Request For Damages. Said Motion alleges as cause therefor, inter alia, as follows:
'1. This cause was submitted to the trial court as an 'agreed case' wherein a motion for a new trial was not proper and the time for appeal ran from the date of judgment. Appellant failed to file the Transcript and Assignment of Errors in compliance with Supreme Court Rule 2--2 since:
(a) the judgment of the trial court was entered on June 13, 1969, and
(b) appellant filed the Transcript and Assignment of Errors with the Clerk of this Court on December 30, 1969.
For this reason the appeal should be dismissed.'
In view of the result we have reached we need not consider the other causes alleged in appellee's motion.
Appellee asserts that this case was submitted to the trial court as an agreed case under the provisions of Burns' Indiana Statutes § 2-2201, and that in such cases a motion for new trial is not proper, but that the time for appeal begins to run from the date of the trial court's judgment. Appellee states that the judgment of the trial court was entered on June 13, 1969, but that the transcript and assignment of errors were not filed until December 30, 1969, so that the time for appeal pursuant to Supreme Court Rule 2-2 had expired and this appeal must be dismissed.
The statute providing for a cause to be submitted as an agreed case, Burns' Indiana Statutes § 2-2201 et seq. (1968 Repl.), reads as follows:
The record reveals that this cause was commenced by the appellee filing a complaint in the trial court to recover on a certain insurance policy. Thereafter, without the cause ever having been put at issue by the pleadings, the plaintiff and defendant by their respective counsel, filed what was denominated 'Agreed Statement of Facts'. The Agreed Statement of Facts commences as follows:
'Plaintiff and defendant, by their respective counsel, respectfully submit to the court the following agreed statement of facts, to be considered by the court as all of the evidence in the cause of action now pending before the court in the above-captioned cause, and respectfully pray the court to render its general finding and judgment thereon:'
Then followed the statement of agreed facts. The relief prayed was as follows:
'WHEREFORE, the parties hereto ask the court to render such judgment on said agreed case as the law will warrant.'
This was signed by counsel both for the plaintiff and defendant, and immediately after their signatures appeared the following:
'Before me personally appeared Edward S. Mahoney and Richard P. Good, now, being duly sworn, stated that the controversy submitted in the above case is real and the proceedings are in faith to determine the rights of the parties.
Notary Public
My Commission Expires
Sept. 17, 1972.'
Thereafter the parties filed their Additional Stipulation of Facts, which was signed by counsel for both the plaintiff and defendant, and which contained, after the signatures of counsel, the following:
'Before me personally appeared Edward S. Mahoney and Richard P. Good, now, being duly sworn, stated that the controversy submitted in the above case is real and the proceedings are in faith to determine the rights of the parties.
Notary Public
My Commission Expires
9--9--72'
It further appears from the record that briefs were filed by the parties, and oral argument heard, after which the Court entered its judgment as follows:
'Comes now the parties and having submitted their additional stipulation of facts as of May 14, 1969, and the Court having heard the arguments of counsel and having taken this cause under advisement, now enters judgment that the plaintiff have and recover from the defendant Twenty Thousand One Hundred and Sixty-Nine Dollars ($20,169.00) and the costs of this action, all as per written opinion and judgment of the Court.'
It thus appears from the record that the parties complied with all the statutory requirements in submitting this cause as an agreed case to the trial court. The cause was never put at issue by the pleadings, but instead the parties filed written agreed statements of fact, signed by counsel for both parties, supported by the required affidavits, and requested the Court to render judgment thereon.
Appellant now argues that this cause was not submitted as an agreed case in the trial court, but rather was submitted and tried on an agreed statement of facts, and therefore a motion for a new trial was a prerequisite to its appeal.
We have examined the cases cited by appellant in support of its argument, and we find that in each of the cases cited by the appellant the procedure in the trial court differed from the proceedings in this case. In each of the cases cited by the appellant, there was some deviation from the requirements set out in the statute providing for submitting a cause as an agreed case under the statute, and the case was held to be a case tried on an agreed statement of facts.
Thus, in the case of Struble-Werneke Motor Company, Incorporated v. Metropolitan Securities Corporation (1931), 93 Ind.App. 416, 178 N.E. 460, the cause was put at issue by the pleadings, after which the parties filed a stipulation of facts. The Court, in holding this was not an agreed case under the statute stated, at pages 420 and 421, 178 N.E. at page 462:
'* * * Before such evidence can be treated as 'an agreed statement of the facts' within the meaning of said section of the statute, the agreement must be 'made out and signed by the parties,' and it must be made to 'appear by affidavit that the controversy is real, and the proceedings in good faith to determine the rights of the parties.' The record does not disclose the formalities that are necessary to constitute the evidence brought before the court in the instant case an 'agreed case' upon (Our Emphasis.)
In the case of Pennsylvania Company v. Niblack (1884), 99 Ind. 149, the cause was put at issue by the pleadings, after which there was a trial by the court on an agreed statement of facts. The Court stated at page 150:
Thus, none of the cases cited by appellant in support of its argument that this case was not submitted as an agreed case are pertinent because in this case, the statutory requirements were complied with whereas in the cases cited by appellant, either the statute was not complied with, as in Struble-Werneke Motor Company, supra, or the case was put at issue, after which the parties made stipulations of fact which were used as evidence in the case, as in Pennsylvania Company, supra.
The appellant then sets out the following quotation from the case of Aubain v. United Brotherhood of Carpenters and Joiners of America (1917), 63 Ind.App. 636, at 638, 115 N.E. 78, 79, in support of its contention that a motion for new trial was required in this case as a condition to appeal:
We have no quarrel with that general statement. However, it does not apply to this cause, because in this cause the issues were never joined.
The appellant overlooks an earlier quotation from the Aubain case, supra, appearing on page 637, 115 N.E. on page 78, as follows:
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