Himelstein Bros. v. Texas Co.

• Decision Date: 15 April 1955
• Docket Number: No. 18622,18622
• Citation: 125 Ind.App. 448,125 N.E.2d 820
• Parties: HIMELSTEIN BROTHERS, Inc., Appellant, v. The TEXAS COMPANY, Appellee.
• Court: Indiana Appellate Court

Page 820

125 N.E.2d 820

125 Ind.App. 448

HIMELSTEIN BROTHERS, Inc., Appellant, v. The TEXAS COMPANY, Appellee.

No. 18622.

Appellate Court of Indiana, In Banc.

April 15, 1955

Frankenstein & Frankenstein, Solly K. Frankenstein, Ora R. Kuhlman, L. H. Dunten, Fort Wayne, for appellant.

Barrett, Barrett & McNagney, Wm. F. McNagney, Ft. Wayne, for appellee.

KENDALL, Judge.

Appellant brought this suit in the lower court against the appellee to set aside a default judgment rendered against the appellant in the sum of $1,500.

The second amended complaint alleged that the appellee obtained judgment through appellant's mistake, inadvertence and excusable neglect. We do not find any allegation in the amended complaint alleging that the appellant had a meritorious defense, although evidence on that issue was admitted during the trial of this action. To the amended complaint, appellee filed appropriate answer.

Cause was tried to the court resulting in a judgment adverse to appellant.

Motion for new trial contends that the finding of the court is not sustained by sufficient evidence and is contrary to law; that the court, in absence of appellant, entered judgment in the case without giving appellant opportunity to have the finding of facts and conclusions of law, which appellant contends the court made, incorporated in the record; that the finding of the court contained in a letter dated December 8, 1953, was not sustained by sufficient evidence and is contrary to law; that the trial court erred in refusing appellant's request to make the letter containing the purported finding a part of the record.

Assignment of errors are:

(1) Error in overruling appellant's motion for new trial;

(2) Error in refusing to admit into evidence on the hearing for a new trial appellant's Exhibit A, being a letter signed by the trial judge and mailed to the parties, which has been referred to in appellant's motion for new trial;

(3) Error of court in entering its findings in this action in the absence and without notice to the parties.

Appellant's contention that the decision of the trial court was not sustained by sufficient evidence is without merit in this case. The appellant had the burden of proof in the trial court where there was an adverse finding against him. It is well established that a negative decision cannot be attacked upon grounds of lack of evidence. Granger's Estate v. Gosport Cemetery Ass'n, Ind.App.1954, 118 N.E.2d 386, (transfer denied) and cases therein cited.

Appellant's second assignment of error is the court's refusal to admit into evidence appellant's Exhibit A on a hearing of motion for new trial, which Exhibit purports to be a letter signed by the trial judge and mailed to the respective parties. Purported Exhibit A is referred to in Bill of Exceptions Number Two; however, it is not made a part of said Bill. This court cannot tell from an examination of the Bill of Exceptions Number Two what is contained in the intended Exhibit A. Failure to incorporate said Exhibit in the Bill of Exceptions Number Two renders it impossible for this court to consider the alleged error of the court in refusing its admission into evidence. Error cannot be predicated upon an alleged error of the trial court in refusing the admission of Exhibit A when the contents are not disclosed by the Bill of Exceptions. Garner v. State, 1949, 227 Ind. 503, 86 N.E.2d 675. Even if the Exhibit was properly before this court in the Bill of Exceptions Number Two, it would constitute nothing more than an oral opinion of the trial court which opinion in itself is not a proper item of a Bill of Exceptions. In this case neither party requested a special finding of facts. Counsel for appellant admitted during the progress of the hearing on the motion for new trial that said purported Exhibit A was a general finding made by the court so if it was before this court for consideration, it would constitute nothing more than mere surplusage. It is well recognized that an opinion of a trial court is not a proper part of the record when special finding of facts was not requested; that such opinion cannot be considered on appeal for the reason that all presumptions are in favor of the correctness of the ruling made.

In the case of Katterhenry v. Arensman, 1915, 183 Ind. 347, 108 N.E. 101, 102, the court said:

'The trial court, in deciding the case, prepared and filed a written opinion in which it stated the issues presented, and discussed the law and the evidence in giving the reasons upon which the decision was based. No special finding of facts was requested, and this opinion does not purport to find the facts specially. It was embodied in the sixth cause of appellants' motion for a new trial, but it has no proper place in the record, and it cannot be considered on appeal. Hinshaw v. Security Trust Co. (1911), 48 Ind.App., 351, 93 N.E. 567.'

Appellant waived assigned error number three by failure to comply with Rule 2-17(e) of the Supreme Court in that they failed to discuss said alleged error and cite any authorities therefor. The only other proper assignment left for consideration is whether the decision of the trial court is contrary to law. The principal question therefore being whether there is sufficient proof of mistake, inadvertence or excusable neglect on the part of appellant's counsel to compel a conclusion contrary to that reached by the court.

The amended complaint proceeds upon the theory that the judgment should be set aside on account of alleged excusable neglect of appellant's counsel in failing to enter his appearance on the trial docket of this particular case. Appellant relies upon § 2-1068, Burns' 1946 Replacement. We find no fault with appellant's argument that courts have an inherent power to set aside judgments where one litigant has obtained an unfair advantage of his adversary through fraud, inadvertence, surprise, accident, mistake or otherwise; however, courts have held that what constitutes mistake, inadvertence or excusable neglect would in another court be held differently and that the question is one to be determined by the particular facts of each case. Williams v. Grooms, 1889, 122 Ind. 391, 24 N.E. 158.

This court is asked to excuse counsel's neglect in entering his appearance for two reasons--first, he contends that he asked the deputy clerk to enter his appearance for him, which was not done; second, he alleges and so testified that the summons and a copy of the complaint were misplaced on his desk by his secretary when she was straightening out the papers. The evidence shows that the counsel went to the courthouse, after being contacted by the secretary of appellant corporation, where he procured a copy of the complaint; that he told the deputy clerk he wished to enter his appearance for appellant; that the deputy clerk was unable to find the docket sheet for this case at that time, which was between 3:00 and 4:00 in the afternoon, and that counsel informed the deputy clerk to enter his appearance when she found the docket sheet. No evidence was presented that counsel ever checked the record further to determine whether or not his appearance had been entered. Evidence disclosed that counsel knew nothing about the judgment until several weeks thereafter when he was informed of its rendition by the secretary of appellant corporation who had been advised by Dun & Bradstreet that the judgment had been rendered. The counsel testified that his secretary...