Med. Coll. of Indiana v. Commingore

• Decision Date: 08 February 1895
• Citation: 140 Ind. 296,39 N.E. 744
• Parties: MEDICAL COLLEGE OF INDIANA et al. v. COMMINGORE et al.
• Court: Indiana Supreme Court

140 Ind. 296

39 N.E. 744

MEDICAL COLLEGE OF INDIANA et al.

v.COMMINGORE et al.

Supreme Court of Indiana.

Feb. 8, 1895.

Appeal from superior court, Marion county; Napoleon B. Taylor, Judge.

Action by John A. Commingore and others against the Medical College of Indiana and others for an accounting and appointment of a receiver. From a judgment for plaintiffs, defendants appeal. Affirmed.

Ritter & Ritter and Frank T. Edenharter, for appellants. Hez Dailey, for appellees.

MONKS, J.

This was an action brought by the appellees against the appellants for an accounting and the appointment of a receiver. The court below, the parties having requested it, made a special finding of the facts, and stated the conclusion of law thereon. On motion of the appellees, the court rendered judgment in their favor. It is urged by appellants that the court erred in its conclusions of law upon the facts found. There were no exceptions taken to the conclusions of law when the same were filed. The special finding and the conclusions of law thereon were announced and filed on the 25th day of September, 1891. No exceptions were taken to the conclusions of law on that day. Afterwards, on the 1st day of October, 1891, on motion of the appellees, judgment was rendered in their favor, and at this time, after the judgment was entered, the Medical College of Indiana excepted to the conclusions of law, and also to the judgment of the court upon the conclusions of law. The other appellants reserved no exceptions.

The question involved was settled by this court in Hull v. Louth, 109 Ind. 332, 333, 10 N. E. 270, and in Radabaugh v. Silvers, 135 Ind. 607, 608, 35 N. E. 694. In Hull v. Louth, supra, this court said: “The special finding of facts and conclusions of law thereon were announced and filed on the 31st day of December, 1883. No exception was taken to the conclusion of law on that day. Nothing further was done in the case until the 3d day of January, 1884. Of the proceedings in the case on that day there is this writing: ‘Come the parties appealing as heretofore, and the plaintiff (appellant) now excepts to the special finding of facts and the conclusion of law therein contained and heretofore filed,’ etc. It is settled by the decisions of this court that, in order to save any question for review here in a case like this, an exception to the conclusions of law must be taken at the time the decision is made,”-citing Smith v. McKean, 99 Ind. 101;Kolle v. Foltz, 74 Ind. 54;Johnson v. Bell, 10 Ind. 363;Dickson v. Rose, 87 Ind. 103;Coan v. Grimes, 63 Ind. 27;Dickson v. Lambert, 98 Ind. 487; Railroad Co. v. Leviston, 97 Ind. 488. To the same effect are Matsinger v. Fort, 118 Ind. 107, 20 N. E. 653;Railway Co. v. Dickason, 130 Ind. 164, 29 N. E. 775;Brown v. Railway Co., 135 Ind. 587, 35 N. E. 503;Barner v. Bayless, 134 Ind. 605, 33 N. E. 907, and 34 N. E. 502. The statute (section 626, Rev. St. 1881; section 638, Rev. St. 1894) provides that “the party objecting to the decision must except at the...