Mendenhall v. Lay, 18406
| Decision Date | 16 April 1953 |
| Docket Number | No. 18406,18406 |
| Citation | 123 Ind.App. 486,111 N.E.2d 662 |
| Parties | MENDENHALL v. LAY et al. |
| Court | Indiana Appellate Court |
Charles Mendenhall, Indianapolis, for appellant.
Bachelder & Fife, Indianapolis, for appellees.
Suit by Appellant as Executor of the estate of William E. Mendenhall, deceased, against Appellees in two paragraphs. Paragraph one was based upon a note executed by Appellees in favor of William E. Mendenhall, now deceased, which was secured by a mortgage in the principal sum of Two Thousand ($2,000) Dollars, plus interest, dated December 1, 1947. The second paragraph was based upon a note dated December 18, 1946, which note was alleged to be due and payable one year from date thereof in the principal sum of One Thousand ($1,000) Dollars, plus interest.
The court found for the defendants, Appellees herein, on the first paragraph of complaint and for the plaintiff, Appellant herein, on the second paragraph of complaint, and rendered judgment against Appellees in the sum of Three Hundred and Twenty ($320) Dollars, plus interest at three (3%) percent, and One Hundred and Twenty-five ($125) Dollars attorney fees.
Motion for new trial was timely filed by Appellant, which was overruled.
The Appellant's assignment of errors are as follows:
1. The court erred in admitting into evidence defendant's exhibit one over the objection of the plaintiff.
2. The court erred in overruling plaintiff's motion to strike all of the testimony of co-defendant, Fred Lay, as being incompetent.
3. The court erred in overruling Appellant's motion for new trial.
Assignment of errors numbers one and two endeavor to assign independently certain errors which it is alleged the court committed and which were not made a part of the motion for new trial.
Specific errors complained of must be pointed out in the motion for new trial. Snodgrass v. Hunt, 1860, 15 Ind. 274; Reese v. Caffee, 1892, 133 Ind. 14, 32 N.E. 720; Hawkins v. Wheat, 1945, 223 Ind. 239, 59 N.E.2d 728.
Assignment of errors numbers one and two do not present any question to this court since the alleged errors are not set forth by the Appellant in the motion for new trial. These alleged errors are not proper as independent assignment of errors.
The Appellant asserted as grounds for his motion for new trial that the court erred in overruling his motion to dismiss his first paragraph of complaint. Appellant contends that he had a right to dismiss said amended first paragraph of complaint for the reason that no decision had been made by the court; however, in the instant case, the court had announced in open court his written findings in said cause of action, which, in our opinion, constituted a sufficient decision so far as to estop the Appellant from dismissing any portion of his pleading.
Section 2-901, Burns' 1946 Replacement provides as follows:
* * *'
We believe the general rule to be that a party may dismiss his suit or a paragraph thereof at any time before the court announces its findings, but, after the finding is announced, said motion comes too late. Wall v. Hutton, 1931, 92 Ind.App. 705, 173 N.E. 600; Walker v. Heller, 1877, 56 Ind. 298.
In the case of Walker v. Heller, supra, it was held that an entry in a cause made in the proper order book, which is a proper record, by direction of the court, finding in favor of one defendant generally and for the plaintiff against another defendant, is such a finding as will preclude a dismissal of the case. See also Zuelly v. Casper, 1906, 37 Ind.App. 186, 76 N.E. 646. The court further stated, in the Walker v....
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City of Angola v. Hulbert
...in the motion for new trial. Since it was not included therein, it is not a proper independent assignment of error. Mendenhall v. Lay, 1953, 123 Ind.App. 486, 111 N.E.2d 662. Having disposed of the above assignments of error, there remains for our consideration only that the court erred in ......
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Nicolai v. Blickenstaff
...its ruling before an appeal is taken. Durham v. City of Indianapolis, 1952, 123 Ind.App. 74, 108 N.E.2d 205; Mendenhall v. Lay, 1953, 123 Ind.App. 486, 111 N.E.2d 662; Blanton v. State, 1953, 233 Ind. 51, 115 N.E.2d 122, rehearing denied 116 N.E.2d 631.' Flanagan, Wiltrout & Hamilton's Indi......
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Miller v. State
...of the Supreme Court; Coleman v. New York, Chicago & St. Louis R. Co., 1951, 121 Ind.App. 616, 101 N.E.2d 721; Mendenhall v. Lay, 1953, 123 Ind. App. 486, 111 N.E.2d 662. In any event, where there is no trial (and there was none here), a motion for a new trial is not required. Gavit, Indian......
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...117 Ind.App. 117, 69 N.E.2d 606; Witte v. Witte, et al. (1953), 123 Ind.App. 644, 113 N.E.2d 166; Mendenhall, Extr., etc. v. Lay (1953), 123 Ind.App. 486, 111 N.E.2d 662. In the recent Indiana case of Baltimore & Ohio Railroad Co. v. Lilly Paint Products (1963), Ind.App., 188 N.E.2d 278, 28......