Huffman v. McKinney
| Decision Date | 24 February 1972 |
| Docket Number | No. 371A44,371A44 |
| Parties | Marvin H. HUFFMAN and Florence R. Huffman, Plaintiffs-Appellants, v. Harold McKINNEY and Oguerita McKinney, Defendants-Appellees. |
| Court | Indiana Appellate Court |
John M. Lewis, Seymour, for appellants.
Bruce Markel, Jr., Brownstown, for appellees.
The plaintiffs-appellants in this cause, in August of 1965, filed their complaint for an injunction alleging that the defendants-appellees, without right, shortly before the action was filed entered upon the real estate of the appellants and set a certain fence in a line approximately five feet inside the boundary line of the appellants' real estate.
The appellees, by counsel, filed answer, closing the issues. Trial was had by the court and at the conclusion of the appellants' evidence the court sustained a motion for finding for plaintiffs, and granted judgment as follows:
'Comes now the parties, by their counsel of record, and the plaintiffs having heretofore filed their motion for a finding in favor of plaintiffs, which motion reads as follows, (HI), and the arguments of counsel are now had; and the Court having considered said motion, the arguments of counsel and being duly advised in the premises, sustains said motion and grants to the plaintiffs a finding in their favor.
'And the Court now finds that the plaintiffs are entitled to an injunction perpetually enjoining the defendants, and each of them, and all persons claiming by, through and under them, or either of them, from taking possession of, or attempting to take possession of, the real estate described in the complaint herein, and from further placing any obstructions thereon, or in any manner, interfering with the use or occupation of said described real estate by the plaintiffs, or either of them.
'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Court that the defendants, Harold McKinney and Oguerita McKinney, and each of them, be, and they are hereby, perpetually enjoined from taking possession of, or attempting to take possession of the real estate described in the complaint herein, as the same is occupied by the plaintiffs, and each of them, and the said defendants, Harold McKinney and Oguerita McKinney, and each of them, are hereby perpetually enjoined from placing any obstructions thereon, or in any other manner, interfering with the use and occupancy of said described real estate by the plaintiffs, Marvin H. Huffman and Florence R. Huffman, or either of them.
'IT IS FURTHER ORDERED that plaintiffs recover of and from defendants their costs herein, laid out and expended and taxed at $_ _.
'So ordered and judgment accordingly this 13th day of December, 1965.'
On January 12, 1966, the defendants-appellees filed a motion for a new trial.
On September 11, 1969, the motion for new trial was overruled. On September 22, 1969, the court made an entry as follows, to-wit:
'On defendants oral motion to reconsider, the entry of 11 September 1969 is set aside pending oral argument herein.'
On December 30, 1970, without argument and without giving reasons therefor, the court granted a new trial. The plaintiffs-appellants timely filed a praecipe for transcript for an appeal under Supreme Court Rule AP. 2(A) and pursuant to AP. 7.2(B).
Plaintiffs-appellants set forth and argue with great ardor three specifications, each of which they contend was reversible error, namely:
1. That the trial court lost jurisdiction of this cause, preventing the granting of the motion for new trial on December 30, 1970, for the reason it was in a subsequent term to the original judgment of December 13, 1965.
2. That the defendants-appellees' motion for new trial offered no basis for a new trial in that it was totally defective to present for review the purported ground attempted to be stated therein.
3. That the action of the trial court, in granting the motion for new trial, became a nullity when the trial court failed to specifically state his grounds for granting such new trial (the trial court not now being available to certify his grounds therefor, thus alleviating the possibility that this cause could be remanded to the trial court so that such specific grounds could now be certified to this court.)
This court takes judicial notice of the fact that the honorable trial judge who heard this cause of action is no longer judge of the Jackson Circuit Court and that Robert R. Brown is now the duly elected, qualified and acting judge of that court.
In the case of Wildwood Manor, Inc. v. Gary National Bank (1970), Ind.App., 255 N.E.2d 128, the trial judge granted plaintiff's motion for new trial as to Paragraph 2 of its complaint. Thereafter, the appellant filed a motion requesting the court to reduce to writing the reasons for granting the new trial.
This court, in holding that it was necessary for the trial court to reduce to writing its reasons for granting a new trial, did so under authority of the case of Harmon v. Arthur (1963), 134 Ind.App. 526, 189 N.E.2d 719, wherein this court, in discussing the necessity for the trial court to set out its reasons for granting a new trial said:
This court, in the case of Landers v. McComb Window and Door Co. (1969), Ind.App., 248 N.E.2d 358, 362, said:
'In granting a Motion for a New Trial the trial judge is obligated to set forth his reasons for granting the same.' (Citing cases.)
Such holdings as the two above cited cases are in agreement with ...
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Weida v. Kegarise
...227-28, 181 N.E.2d 239, 239-40 (1962). The adoption of the rule did not alter this procedural requirement. Huffman v. McKinney, 151 Ind.App. 238, 240-42, 278 N.E.2d 611, 613-14 (1972). The purpose behind this requirement is to ensure "good practice and to further the orderly administration ......