Hoffman v. Hoffman

• Decision Date: 17 November 1944
• Docket Number: 17222.
• Citation: 57 N.E.2d 591,115 Ind.App. 277
• Parties: HOFFMAN v. HOFFMAN et al. (two cases).
• Court: Indiana Appellate Court

57 N.E.2d 591

115 Ind.App. 277

HOFFMAN v. HOFFMAN et al. (two cases).

No. 17222.

Appellate Court of Indiana, in Banc.

November 17, 1944

Rehearing Denied Dec. 19, 1944.

See 58 N.E.2d 201.

Kivett, Chambers & Kivett, of Indianapolis Hughes & Hughes and M. J. Murphy, all of Greencastle, and Charles V. Sears, of Danville, for appellants.

Harding & Harding, of Crawfordsville, Hume & Gaston, of Danville, and Royse & Travis, of Indianapolis, for appellees.

DRAPER Presiding Judge.

This cause, originally filed in the Putnam Circuit Court, is a proceeding for partition and to quiet title to real estate in that county. It was venued to the Hendricks Circuit Court and there tried to a jury, who returned a verdict in favor of the appellees on May 24, 1943 and judgment was entered thereon the following day.

The decree, which was entered by agreement of counsel representing the several parties, included the following paragraph:

'And now all parties, by their several attorneys, waive all rights of appeal and to modify the judgment herein, and all and severally consent that the venue of this cause may be changed back to the Putnam Circuit Court, and accordingly, the court now orders the venue be changed to the Putnam Circuit Court, and the Clerk of the Hendricks Circuit Court is directed to transcript and certify all the record of this cause in the Hendricks Circuit Court, together with all pleadings and papers herein to said Putnam Circuit Court; all reports and further proceedings in this cause to be had in said court.'

On June 5 the change of venue was perfected and the Putnam Circuit Court assumed jurisdiction of the cause.

On June 11 the appellants filed in the Hendricks Circuit Court their separate verdified motions to set aside the judgment and decree and to modify and correct it by striking therefrom their waivers of their right to appeal, and they also filed their separate motions for a new trial.

On July 16 the Hendricks Circuit Court granted the motions to modify and correct the decree and modified the same by striking therefrom the paragraph above quoted, and further ordered: '* * * that all the papers in this cause heretofore sent to the Putnam Circuit Court, under that part of the order which is now stricken out, be returned to the Circuit Court of Hendricks County, Indiana.' The motions for new trial were overruled on the same day, and steps were taken to perfect this appeal. All dates above mentioned were within the May term of the Hendricks Circuit Court.

The appellees move to dismiss the appeal, contending, among other things, that at the time of the filing of the motions for new trial in the Hendricks Circuit Court, there was pending there no cause of action in which an appeal could be prosecuted.

The appellants insist that jurisdiction remained in the Hendricks Circuit Court despite the proceedings above shown, and that no change to Putnam County could be granted without first setting aside the submission of the cause.

It makes no difference, as we view it, whether either party could have compelled a change of venue from the county upon the filing of an application thereof correct in form at that stage of the proceedings when the agreement was shown of record. No application was filed. The title to lands was in issue in the case, and the judgment, ordering as it does the sale of indivisible real estate, had sufficient finality to support an appeal to this court, Stauffer v. Kesler, 1920, 191 Ind. 702, 127 N.E. 803, Jones v. Jones, 1926, 84 Ind.App. 176, 149 N.E. 108, 150 N.E. 65, yet under our statutes governing partition of real estate (Burns' 1933, § 3-2401 et seq.) the court after the entry of this judgment had further duties to perform before the litigation could be considered finally disposed of, and the cause was to that extent at least, a pending cause of action. For the reason, according to the briefs, that it would be more convenient and economical to transcript the proceedings to the county where the land was situated, there to complete this litigation in which further steps were necessary to be taken, the parties voluntarily agreed to and the court approved the change of venue, and we know of nothing in our law which condemns such procedure. The law gives the Putnam Circuit Court general jurisdiction of...