Heekin Can Co. v. Porter

• Decision Date: 08 February 1943
• Docket Number: 27746.
• Citation: 46 N.E.2d 486,221 Ind. 69
• Parties: HEEKIN CAN CO. v. PORTER et al.
• Court: Indiana Supreme Court

46 N.E.2d 486

221 Ind. 69

HEEKIN CAN CO. v. PORTER et al.

No. 27746.

Supreme Court of Indiana

February 8, 1943

Lutz Johnson & Lutz and Philip Zoercher, all of Indianapolis for appellant.

Chauncey W. Duncan, of Rushville, for appellees.

SWAIM Judge.

The appellant filed an action against the assessor, auditor treasurer and the board of county commissioners of Rush County, Indiana, to quiet the title to certain real estate against which the said officials were claiming a lien for delinquent taxes on personal property. The appellee officers by answer asserted that the said lien was a valid and subsisting lien against said real estate for taxes duly assessed against a former owner for the years 1937, 1938 and 1939. The trial was to the court without the intervention of a jury.

From a judgment against the appellant, it appealed, assigning as error the overruling of its motion for a new trial. The reasons stated for a new trial were that the verdict was not sustained by sufficient evidence and was contrary to law.

The appellees contend that the trial court properly overruled the motion for a new trial since it assigned no statutory ground therefor and, therefore, presented no question.

The sixth statutory ground for a new trial is 'That the verdict or decision is not sustained by sufficient evidence, or is contrary to law.' § 2-2401, Burns' 1933, § 368, Baldwin's 1934. This court has held that 'decision' as used in this statute means the finding of the court upon the facts where the cause is tried by the court. Smith et al. v. Hill, 1929, 200 Ind. 616, 165 N.E. 911; Wolverton v. Wolverton, 1904, 163 Ind. 26, 71 N.E. 123.

In Gates v. Baltimore, etc., Ry. Co., 1900, 154 Ind. 338, 56 N.E. 722, 724, it was held that an assignment 'that the decision of the court is not sustained by sufficient evidence, and is contrary to law' presented no question as to the sufficiency of the evidence to support a special verdict rendered by the jury. The court there said: 'The word 'decision,' as employed by the section of the Code above cited, means the finding of the court upon the facts where the cause is tried by the court and has no application where the trial is by jury. [Citing cases].'

In Mathews v. Highlands, Ex'r., 1937, 103 Ind.App. 265, 7 N.E.2d 72, 74, it was held that the words 'verdict' and 'decision' could not be considered synonymous or interchangeable; that 'the word 'verdict' could not be substituted for the word 'decision' in assigning the statutory causes in a motion for a new trial when the cause is tried before the court without the intervention of a jury'; and that in such a case where the word 'verdict' was used the motion for a new trial did not challenge the court's decision.

We recognize the fact that in legal terminology 'verdict' and 'decision' have come to have very definite meanings, the first, the finding of the jury and the second, the finding of the court. Each, however, denotes the finding on the facts.

The requirement that the motion for a new trial specify the grounds therefor is for the purpose of pointing out to the trial court and the other party the error complained of. The written reasons for a new trial are sufficient if they, with reasonable certainty, apprise the court and the opposite party of the ground upon which the new trial is asked. The reason need not be stated in the language of the statute. Humphries v. Administrator of Marshall, 1859, 12 Ind. 609.

In the instant case it would seem that both the court and the other party must have known that the appellant was asserting that he should be granted a new trial because the decision was not supported by sufficient evidence and was contrary to law. Both knew that the trial was by the court. Both necessarily knew that appellant was complaining of the finding not being supported by sufficient evidence and being contrary to law. The fact that appellant to designate the finding inadvertently used the word 'verdict' instead of 'decision' could not have misled either the court or the other party. To hold that such an inadvertence prevents a consideration of this case on the merits would impede, rather than promote, the ends of justice. In so far as Gates v. Baltimore, etc., Ry. Co. supra, is in conflict with this opinion it is overruled and the holding on this question in Mathews v. Highlands, Ex'r, supra, is disapproved.

The appellees also contend that this court can not consider this appeal on its merits because the bill of exceptions containing the evidence is not in the record; that it is not shown by the order book entry or by the certificate of the clerk that the bill of exceptions was filed with the clerk or in open court after it was signed by the trial judge. The statute, § 2-3111, Burns' 1933, § 456, Baldwin's 1934, provides that it shall appear from the record that such bill was presented to the judge for settlement and signature within the proper time; and that the same was signed by the judge and filed with the clerk of the trial court or in open court. In the instant case the record shows an order book entry, made within time, which recites that within the time fixed and allowed the plaintiff presented and tendered the bill of exceptions to the court; that the court allowed and signed the bill of exceptions and ordered it made a part of the record and proceedings of the cause, and further ordered the clerk to file the same as part of the record and proceedings in the cause. In the transcript this order book entry is followed by the bill of exceptions and attached thereto is a copy of the said entry signed by the judge. The certificate of the clerk to the transcript recites that he certified 'that the above and foregoing transcript contained full, true and correct copies or the originals of all papers and entries, including a bill of exceptions numbered one, containing all agreed stipulations and facts and all evidence given in the cause * * * as the same remains of record and on file in my office * * *.' The bill of exceptions and entry signed by the judge could not have then been on file in the clerk's office unless it had been filed there. This transcript, by the order book entry and by the final certificate...