Flick v. Simpson, 967

• Decision Date: 25 November 1969
• Docket Number: No. 2,No. 967,967,2
• Citation: 252 N.E.2d 508,145 Ind.App. 698
• Parties: Norman Z. FLICK, Appellant, v. Virgil O. SIMPSON, Appellee. A 60
• Court: Indiana Appellate Court

Page 508

252 N.E.2d 508

145 Ind.App. 698

Norman Z. FLICK, Appellant, v. Virgil O. SIMPSON, Appellee.

No. 967 A 60.

Appellate Court of Indiana, Division No. 2.

Nov. 25, 1969.

Rehearing Denied Feb. 5, 1970.

James Manahan, Dean E. Richards, Indianapolis, DeWitt, Richards, & Manahan, Indianapolis, of counsel, for appellant.

Tony Foster, Donald L. Jackson, Indianapolis, Bingham, Summers, Welsh & Spilman, Indianapolis, of counsel, for appellee.

WHITE, Judge.

This is an action brought by appellee, Virgil O. Simpson, the conditional seller, against appellant Norman Z. Flick, the conditional purchaser, for breach of contract to purchase and for possession of real estate. Failure to pay taxes was the breach alleged. The day before trial appellant filed a written motion for continuance which was promptly overruled. The next day, at the beginning of the trial, appellant's counsel orally requested a continuance because of appellant's alleged physical inability to be present. Appellant's two attorneys left the court room after the continuance was denied, and the trial was conducted in the absence of appellant and of his counsel. Before counsel left, however, a telegram from appellant to one of his attorneys, dated the day before trial, was offered by them and admitted into evidence. It stated that appellant had to leave town immediately due to an unspecified emergency and that he understood the case was probably continued. Also before counsel were excused, appellant's deposition was published and offered into evidence by appellee (but there is no record that it was admitted or that it was read to or by the court).

After hearing several witnesses, the trial court awarded plaintiff-appellee judgment for $968.36 damages, $500.00 attorney fees, and costs.

Defendant-appellant filed a motion for a new trial in which the grounds were stated as follows:

'1. Irregularities in the proceeding of the Court and orders of the Court, and abuse of the Court's discretion by which the defendant was prevented from having a fair trial, in this, to wit:

'(a) That the Court erred in refusing and overruling defendant's Motion for Continuance of the cause having been duly filed in writing on May 8, 1967;

'(b) That the Court erred in refusing and overruling defendant's Petition to Add Second and Third Paragraphs of Answer having been duly filed in writing on May 8, 1967;

'(c) Error of Law occurring at the trial in this to wit: that the Court erred in overruling the defendant's Motion for Continuance orally made by counsel for defendant at the opening of the trial;

'(d) That the judgment of the Court is contrary to law;

'(e) That the judgment of the Court is not substantiated by sufficient evidence.'

No memorandum was filed. The overruling of the motion is the sole error assigned on this appeal.

On July 19, 1968, appellee filed a motion to dismiss or affirm. By order of this court entered November 1, 1968, the motion to dismiss was overruled and the motion to affirm was held in abeyance pending determination of the case on its merits.

The basis of the motion to affirm as to grounds (a), (b), and (c) of the motion for new trial is that said grounds were waived by defects in appellant's brief. These defects as to grounds (a) and (c) were cured by the filing (with leave of court) of the amended appellant's brief. (Ground (b) was again waived by failure to argue it in the amended brief.) As to grounds (d) and (e) of the motion for new trial, the basis of the motion to affirm is that these grounds were not supported by a memorandum. Supreme Court Rule 1--14B states:

'Whenever a new trial is requested on the ground or grounds 'that the verdict or decision is not sustained by sufficient evidence or is contrary to law', the moving party shall file a memorandum stating specifically under such itemized cause wherein such evidence is insufficient or the verdict or decision is contrary to law. The party filing such motion shall be deemed to have waived any ground not specified in the memorandum.'

Appellant contends that no memorandum is required because he has not asserted that the decision is not sustained by sufficient evidence or is contrary to law, but has stated as grounds (d) and (e) of his new trial motion that the judgment is not so sustained and is contrary to law.

The fallacy of appellant's argument is that a judgment is never sustained by evidence. It depends for its sustenance on the jury's verdict or the court's finding or decision. If the judgment does not conform to the verdict, finding, or decision it is unquestionably contrary to law, but the remedy is not a new trial. The remedy is a correction of the judgment to conform. And the remedy is applied for by a written motion to correct judgment. Branson v. Studebaker, 133 Ind. 147, 162, 33 N.E. 98 (1892).

It is for that very logical reason that the statute which specifies the grounds for a new trial makes no mention of the judgment, but does state, as the sixth ground: 'That the verdict or decision is not sustained by sufficient evidence, or is contrary to law.' ¹

We would be receptive to an argument based on authorities appellant cites ² that 'judgment', as used in the motion for new trial should be construed as 'decision'. That would make 'grounds' out of what otherwise are mere surplusage in appellant's motion. But it would not aid appellant if we so held, because the above quoted Supreme Court of Indiana Rule 1--14B requires us to deem such grounds waived unless a memorandum filed by the moving party states specifically wherein such evidence is insufficient or the decision is contrary to law. The rule is binding on us and we are without jurisdiction to question its wisdom or fairness, nor to sanction its evasion by calling a 'decision' a 'judgment'. ³ We therefore deem appellant's 'grounds' (d) and (e) of his motion for new trial to have been waived by his failure to specify by memorandum wherein such evidence is insufficient or the 'judgment' (i.e., decision) is contrary to law.

This leaves us with but two claimed errors to consider:

'(a) That the Court erred in refusing and overruling the defendant's (appellant's) Motion for Continuance of the cause having been duly filed in writing on May 8, 1967.

'(c) Error of Law occurring at the trial, in this, to-wit: that the court erred in overruling the defendant's Motion for Continuance orally made by counsel for defendant (appellant) at the opening of the trial.'

As to ground (a)--the court erred in overruling the written motion for continuance--appellant contends a continuance is mandated by Burn's Ind.Stat.Ann. § 2--1519, (1968 Repl.) which reads:

'Every deposition intended to be read in evidence, must be filed in court at least one (1) day before the time at which the cause in which the deposition is to be used stands on the docket for trial; or, if filed afterwards and claimed to be used, on the trial, the adverse party shall be entitled to a continuance, at the costs of the party filing the deposition, upon showing good cause by affidavit.'

The record shows the deposition was filed a day before the trial as required by the statute. The cause was set for trial on May 9, 1967. The Entry Docket entry for May 8, 1967, from the Office of the Clerk of Marion County, shows the filing on that date, of the defendant's deposition by the plaintiff. It is true that the deposition was not published until the day of the trial. However, it was timely filed and this is all that is required by the statute.

In addition to the fact that appellee did not violate Burns' Ind.Stat.Ann. § 2--1519 (1968 Repl.), it is evident that the appellant did violate the statute. The statute demands that good cause be shown by affidavit. The appellant failed to file any affidavit. This failure would be sufficient reason for the lower court to refuse to grant a continuance even if the deposition had not been timely filed. Furthermore, neither the written motion for continuance nor the later oral motion was on the ground the deposition had not been timely filed. Neither motion made any mention of the deposition. No objection was made to the motion to publish the deposition and no objection was made when it was offered into evidence. (At that time appellant's counsel had not yet ceased to participate in the trial.) The reasons stated in the written motion for continuance have not been discussed here on appeal and are therefore waived.

There was no abuse of discretion or other error in overruling appellant's written motion for continuance or in denying him a continuance at that time (i.e., the day before trial).

This brings us to ground (c)--the court erred in overruling the oral motion for continuance made at the beginning of the trial. Appellant's basis for his oral motion for a continuance was a reiteration of his written motion and his attorney's statement that he was physically unable to be in court that day. His attorneys produced and introduced into evidence a telegram sent from Indianapolis the day before by the appellant stating:

'MR. DEWITT (appellant's attorney) AN EMERGENCY HAS AROSE HAVE TO LEAVE TOWN IMMEDIATELY AN EARLIER CONVERSATION WITH YOUR OFFICE I UNDERSTOOD THE CASE OF V O SIMPSON WAS PROBABLY CONTINUED WILL CONTACT YOU IN A FEW DAYS SINCERELY YOURS NORMAN FLICK'

This wholly unverified telegram was the sole evidentiary support for appellant's oral motion for a continuance.

The unavoidable absence of a party is good cause for a continuance. Welcome v. Boswell, 54 Ind. 297 (1876); Post v. Cecil, 11 Ind.App. 362, 39 N.E. 222 (1894). Although discretionary with the court, a continuance should not be denied, except for weighty reasons, when the application therefore is proper and shows good cause since, it is an important privilege of a party to be present at his own trial. Pate, Executor v. Tait, 72 Ind. 450 (1880); Deacon v. Rasch, 40 Ind.App. 77, 81 N.E. 84 (1907); Schwartz, Adm'r v. Parsons, Guardian, 22 Ind.App. 340, 53 N.E....