Halstead v. Sigler

• Decision Date: 12 May 1905
• Docket Number: No. 5,354.,5,354.
• Citation: Halstead v. Sigler , 35 Ind.App. 419, 74 N.E. 257 (Ind. App. 1905)
• Parties: HALSTEAD v. SIGLER et al.
• Court: Indiana Appellate Court

35 Ind.App. 419

74 N.E. 257

HALSTEAD

v.SIGLER et al.

No. 5,354.

Appellate Court of Indiana, Division No. 1.

May 12, 1905.

Appeal from Circuit Court, Newton County; E. B. Sellers, Special Judge.

Action by Blanche Sigler and others against Everett Halstead. From a judgment for plaintiffs, defendant appeals. Affirmed.

Foltz & Spitler, for appellant. E. P. Honan and Jesse E. Wilson, for appellees.

MYERS, J.

This case is here for the second time. For opinion of this court on former appeal, see Halstead v. Coen, Adm'x, et al., 31 Ind. App. 302, 67 N. E. 957. The issues then and now are the same. After the return of this case to the Jasper circuit court the venue was changed to the Newton circuit court, where the same was tried before the court without the intervention of a jury. The trial court submitted special findings of fact, and stated its conclusions of law thereon. After the close of the evidence in the case, and before the court announced its special findings of fact and conclusions of law, Clara Coen, as administratrix, over the objection of appellant, was by the court permitted to dismiss. With this one exception the parties now before this court are the same as on the former appeal. All questions arising on the issues were settled by the prior appeal, and the law as then announced on the questions then before this court must be taken to be the law of this case. Brunson v. Henry, 152 Ind. 310, 52 N. E. 407;Hatfield v. Cummings. 152 Ind. 537, 53 N. E. 761;Terre Haute, etc., Co. v. Zehner, 28 Ind. App. 229, 62 N. E. 508;Shirk v. Lingeman, 26 Ind. App. 630, 59 N. E. 941.

The facts, as specially found by the trial court, briefly stated, are as follows: Appellees Blanche Sigler, Bessie G. Parker, Madison Makeever, Milton A. Makeever, Ida M. Robinson, Mary A. Gibbons, Sanford Makeever, John L. Makeever, Martha E. Mahaney, and Jessie Makeever are the owners of certain real estate, describing the same. That appellee Clara Coen is the owner of a life estate in an undivided one-third of said real estate. That the appellant, Everett Halstead, has occupied said real estate as a tenant since March 1, 1900, under a written lease expiring March 1, 1907. That without authority from the owners of said real estate, or from the administratrix, appellant sold and caused to be cut and disposed of and hauled from said premises certain saw logs, cord wood, and posts, and converted the same to his own use. That the timber so converted to the use of appellant and taken from the land owned by the parties aforesaid is of the value of $176. That the tops and brush cut from the timber so appropriated by appellant was left scattered over said real estate. “That the damage done to the said real estate by reason of cutting and removing the timber therefrom and leaving the brush scattered thereon is $50. That the timber sold, cut, and removed from said real estate, and sold by the defendant, Everett Halstead, was the property of the plaintiffs.” That appellant has not at any time paid the owners of said lands or the administratrix of the estate of Madison Makeever, deceased, anything for the timber so cut and removed from said premises, or for damages done to said real estate. That by the terms of the lease under which appellant was occupying said lands he agreed at his own expense to take good care of said leased premises, and not, except upon a written order of the lessor, Clara Coen, as administratrix, who by the terms of the will of Madison Makeever had possession and authority to rent said lands, cut, injure, or remove, nor permit to be injured, cut, or removed, any tree, timber, or wood whatever existing upon said leased land. That no written order, and no order of any kind, either written or verbal, was given the defendant to cut or remove from said premises the trees, timber, wood, lumber, or posts sued for herein. That the defendant without right, authority, or privilege cut, removed, and allowed and caused to be cut and removed, said timber, and appropriated the proceeds therefrom to his own use, to the damage of plaintiffs in the sum of $226, and that he has failed and refused to account to the owners of said real estate, or to the administratrix, for the value of said timber and damage done. Upon the above findings of fact conclusions of law were stated as follows: “(1) That the plaintiffs are not entitled to an injunction restraining the defendant from cutting timber on the land described in the complaint. (2) That the plaintiffs are entitled to recover from the defendant the sum of $226 for their damages. (3) That plaintiffs are entitled to recover of and from the defendant their costs in this behalf paid out and expended.” Thereupon the court rendered judgment in accordance with the facts found and conclusions of law stated. Appellant reserved an exception to each conclusion of law, and thereupon, omitting the caption, filed the following motion: “This defendant asks the court to modify its second conclusion of law by reducing the judgment to the sum of fifty dollars,” which motion was overruled, to which ruling of the court appellant reserved his exception. Appellant then moved for a new trial, which was also by the court overruled, to which ruling appellant excepted. Appeal prayed and granted.

The first two errors assigned by appellant go to the sufficiency of the complaint, but, as heretofore in this opinion announced, and under the authorities cited, these alleged errors present no question for our decision.

The third error is based upon the ruling of the court in permitting Clara Coen, as administratrix, to dismiss. It has been a number of times held by the supreme and this court that the plaintiff may dismiss his action at any time before the jury retires or the court announces its finding. Beard v. Becker, 69 Ind. 498;Cohn v. Rumely, 74 Ind. 120;McWhorter v. Norris, 9 Ind. App. 490, 34 N. E. 854, 37 N. E. 21;Louisville, etc., Ry. Co. v. Wylie, 1 Ind. App. 136, 27 N. E. 122. In our opinion, where a case is tried before the court, and special findings of fact are demanded, plaintiff may dismiss his cause of action, or any part thereof, at any time before such special findings of fact are announced. It is the announcement of the special findings after they have been reduced to writing which cuts off the right of dismissal. Section 336, Burns' Ann. St. 1901; Crafton v. Mitchell, 134 Ind. 320, 33 N. E. 1032. From the record it appears that Clara Coen, as administratrix, was permitted by the court to dismiss her cause of action before the court announced its special findings of fact. In this ruling there was no error.

Errors 8 and 9 are based upon the ruling of the court in overruling the motion to modify conclusion of law No. 2 by reducing the judgment. The judgment, in the natural order of things, depends upon the findings of fact and conclusions of law, but under appellant's motion it would seem that the conclusions of law were made to depend upon the judgment. Such a motion is contrary to all rules of practice, and the court committed no error in overruling the same.

Errors numbered 4, 5, 6, and 7 question the lower court's conclusions of law. The exception to conclusions of law admit the correctness of the findings of fact for the purpose of the exception. Warren v. Sohn, 112 Ind. 213, 13 N. E. 863;Blair v. Curry, 150 Ind. 99, 46 N. E. 672, 49 N. E. 908;Indiana, etc., Ry. Co. v. Doremeyer, 20 Ind. App. 605, 50 N. E. 497, 67 Am. St. Rep. 264. As it seems to us, these latter assignments present the principal and only important question in this case. Appellant introduces his argument by the statement that this court held, on the...