Hartlep v. Cole

• Decision Date: 25 April 1885
• Docket Number: 11,538
• Parties: Hartlep v. Cole
• Court: Indiana Supreme Court

101 Ind. 458

Hartlep v. Cole

No. 11,538

Supreme Court of Indiana

April 25, 1885

From the Warren Circuit Court.

Judgment affirmed.

J McCabe and E. F. McCabe, for appellant.

J. W Cole, for appellee.

OPINION

Elliott, J.

The trial court sustained the appellee's demurrer to the second paragraph of the appellant's complaint, but subsequently set aside this ruling and overruled the demurrer. The record, after reciting this ruling, proceeds as follows: "And the issue being joined this cause for trial is submitted to the court, waiving the intervention of a jury." The evidence was heard, the cause taken under advisement, and on the day following the submission for trial a finding was made in favor of the appellee, whereupon the appellant moved for a judgment in his favor on the pleadings, for the reason that there was no answer to the second paragraph of the complaint. There was no error in overruling this motion. The submission of the cause to the court for trial without asking a rule to answer must be deemed a waiver, and we must treat the case as if the allegations of the complaint had been controverted by answer. Trentman v. Eldridge, 98 Ind. 525; Buchanan v. Berkshire Life Ins. Co., 96 Ind. 510, vide p. 516; Preston v. Sandford, 21 Ind. 156; Shirts v. Irons, 28 Ind. 458; Ringle v. Bicknell, 32 Ind. 369.

The appellant had, no doubt, a right to require an answer, but as he voluntarily waived that right by agreeing to submit the cause for trial, he can not insist that the appellee confessed the truth of the allegations of the complaint. It would be a vain thing to submit a case for trial where a valid cause of action was confessed, and it can not be presumed that either the parties or the court meant that a cause of action stood confessed; on the contrary, the presumption is the very reverse, for as a trial was agreed upon it is necessarily implied that there was an issue to try. The case is entirely unlike one where a rule has been taken and an attempt made to answer. There can be no presumption in such a case that there was a waiver; while here that is the only reasonable presumption, for without an issue there would be nothing to try, and without an answer there would be no issue.

The appellant has no reason to complain of the course of the court in setting aside an adverse ruling and making a favorable one. If the change in the ruling on demurrer required any new evidence on the part of appellant, or if it had in any way interfered with his preparation for trial, he should have made his application to the trial court for a postponement, or in some appropriate method have brought his objections to the change and his desire for postponement to the attention of the...