Mayer v. Haggerty

• Decision Date: 19 September 1894
• Docket Number: 16,834
• Citation: 38 N.E. 42,138 Ind. 628
• Parties: Mayer v. Haggerty
• Court: Indiana Supreme Court

38 N.E. 42

138 Ind. 628

Mayer v. Haggerty

No. 16,834

Supreme Court of Indiana

September 19, 1894

From the Vigo Circuit Court.

The judgment is affirmed.

I. N Pierce, W. Mack, D. W. Henry, G. M. Crane and J. T. Crandell for appellant.

C. F McNutt, J. G. McNutt and S. B. Davis, for appellee.

OPINION

Dailey, J.

This suit was brought by appellee, Haggerty, against Anton Mayer in which plaintiff claimed an one-third interest in certain lands for partition. The lands had belonged to Haggerty, and were sold in 1878 by his assignee in bankruptcy, to appellant. Before the sale, the appellee had a wife, who, he claimed, inherited the undivided one-third part thereof under the statute. The wife died prior to the sale, and the appellee asserts title by descent from her.

The appellant, after purchasing the interest from the assignee, claims to have purchased the remaining interest by sale on execution issued on judgments that were rendered prior to the judgment of bankruptcy.

The complaint is in two paragraphs, the first a simple petition for partition; the second sets out appellee's title to one-third of the real estate in controversy, and admits appellant's title to the undivided two-thirds, also that appellant claims to hold judgment liens which he is seeking to enforce against appellee's share, by sheriff's sale, setting up facts to show that said liens are satisfied, and asking that they be so declared; that appellee's title be quieted, and for partition.

Mayer demurred to the second paragraph. The court overruled the demurrer, and an exception was taken. He then filed a general denial and counterclaim in two paragraphs. Haggerty filed an answer to the counterclaim, to which Mayer demurred. The court overruled the demurrer, to which he excepted.

The cause then came on for trial before the Hon. Joshua Jump, special judge, and was by him tried. On the 4th day of February, 1890, the court made its special finding, in which it fully settled all the issues as to the rights of the parties, finding that appellant owned two-thirds of the real estate and appellee the one-third thereof; that appellee owed appellant $ 132.45 for one-third of the taxes and street improvement assessments paid by appellant, and ordering partition, and that the debt found due to appellant should be paid to him by the commissioners in the assignment of interests.

The court prepared the entry of the finding for the clerk, and, at the close of the said entry, the court's decree, so prepared, reads: "Judgment and decree accordingly," and that partition be made of said real estate, etc.

The court filed the entry with the clerk on February 4, 1890. The clerk, in entering the finding and judgment on the order-book, by mistake, omitted the judgment directed by the court. It is quite clear that upon the findings there should have been final judgment, as ordered by the court, upon all the matters found, followed by the usual order appointing commissioners to make partition.

The record shows that on February 4, 1890, the court appointed commissioners, who, on July 11, 1890, reported partition to the court, and that on said day the court ordered the confirmation of said report. On the 11th day of July, 1891, Mayer moved for a new trial as of right. This motion was made before the Hon. David N. Taylor, regular judge of said court, who ordered a new trial, and reinstated the case on the docket. Afterwards, on the 8th day of September, 1891, a motion was made by Haggerty to set aside the order granting a new trial therein, which was sustained by the court, and the order was set aside. On the 30th day of November, 1891, the court, of its own motion, appointed Hon. Joshua Jump as special judge to hear and determine said cause, to which Mayer, at the time, excepted. On March 16, 1892, Haggerty filed his motion for an entry nunc pro tunc, asking for an entry of the judgment as of February 4, 1890, showing that final judgment was then rendered on the issue, quieting the title, which motion the court sustained, and ordered the entry to be so made, over appellant's objection and exception. Haggerty then moved to dismiss the application for a new trial under the statute, on the grounds that it was not made within a year after the final judgment was rendered, which motion was sustained by the court, and the motion for a new trial was stricken out. From this decision an exception was taken, and Mayer prosecutes this appeal.

Appellee insists that the record presents the fact that the appeal was taken too late. The original finding and judgment were given on February 4, 1890. The appeal was prayed April 16, 1892, more than two years after the final judgment, and not perfected until January 14, 1893. The nunc pro tunc judgment relates back to the time when it was rendered. It is defined: "Now for then; that a thing is done at one time as of another time, when it should have been done." 16 Am. and Eng. Encyc. of Law, p. 1005.

"The effect of this record was to enter judgment as of the former date, and when entered it stood as a judgment, of that date, and had the same effect as if it had been properly entered of record and signed by the judge" on the 4th day of February, 1890. Leonard v. Broughton, 120 Ind. 536, 22 N.E. 731 (544, 545).

The time within which an appeal must be taken begins to run from the date of the rendition of the judgment and not from the date of its entry by the clerk in the order book. In this case the court rendered its judgment when it read and filed its finding, on the 4th day of February, 1890, and ordered judgment to follow the finding. Anderson, Admx., v. Mitchell, 58 Ind. 592; Chamberlain v. City of Evansville, 77 Ind. 542 (548); Chissom v. Barbour, 100 Ind. 1; Gray v. Palmer, 28 Cal. 416; Peck v. Courtis, 31 Cal. 207; Genella v. Relyea, 32 Cal. 159; 1 Black Judg., sections 130, 131.

It is clear, from these authorities, that the appeal comes too late to bring before this court the proceedings prior to and in the trial on the merits. The assignment of error is, that the court erred in setting aside the order granting a new trial as of right.

Section 1064, R. S. 1881, Burns' R. S. 1894, section 1076, provides that: "The court rendering the judgment, on application made within one year thereafter * * * shall vacate the judgment and grant a new trial."

Appellant contends that there was no final judgment on February 4, 1890, but merely an interlocutory order of partition, but the record disposes of this position. As appellant says in his brief, "both the complaint and cross-complaint put in issue the title to one-third of the real estate." He also demanded judgment for certain expenditures, and that if the title to one-third was found to be in the appellee, he should have judgment for the money so expended, to be declared a lien on the property. This, then, was not a simple partition suit. Had it been, appellant would not be entitled to a new trial as of right. Ordinarily, the title to real estate is not involved in an action for partition. But when, as in this case, the title to lands is directly put in issue, the judgment of partition is conclusive as to the rights of the parties. Thorp v. Hanes, 107 Ind. 324, 6 N.E. 920; Watson v. Camper, 119 Ind. 60, 21 N.E. 323; L'Hommedieu v. Cincinnati, etc., R. W. Co., 120 Ind. 435, 22 N.E. 125; Isbell v. Stewart, Admr., 125 Ind. 112, 25 N.E. 160.

The court having ordered the clerk to enter a judgment and decree upon all the findings, his inadvertent omission therefrom of everything but the order of partition can not deprive the appellee of his rights under the findings. In view of the facts disclosed by the record, a final judgment was indispensable before a decree of partition could be properly entered at all. It is also true that if the court had found for the appellant on the issue of title, the judgment would have been final.

In Black on Judgments, section 39, and note, it is laid down as a rule that the first decree in partition may be final, and it will have that character, if it settles all the rights...