Newton v. Board of Trustees for Vincennes University

• Decision Date: 26 March 1968
• Docket Number: No. 20676,No. 1,20676,1
• Citation: 142 Ind.App. 391,235 N.E.2d 84
• Parties: Katherine R. NEWTON, John P. Newton, Appellants, v. BOARD OF TRUSTEES FOR the VINCENNES UNIVERSITY, Appellee
• Court: Indiana Appellate Court

Page 84

235 N.E.2d 84

142 Ind.App. 391

Katherine R. NEWTON, John P. Newton, Appellants, v. BOARD OF TRUSTEES FOR the VINCENNES UNIVERSITY, Appellee.

No. 20676.

Appellate Court of Indiana, Division No. 1.

March 26, 1968.

Ramsey & Ramsey, Harvey Ramsey, Emison & Emison, Rabb Emison, Robert P. Doolittle, Jr., Vincennes, for appellants.

Hart, Ledford & Bell, Donald G. Bell, Curtis G. Shake, Vincennes, for appellee.

COOPER, Judge.

The Appellee herein brought this action for specific performance of an option to purchase real property from the Appellants, the defendants below.

It appears that the Appellee's complaint for specific performance of an option to purchase was filed in July of 1965, and it averred, in substance, that the defendants had executed and delivered to the plaintiff an option for the purchase of certain real property located in Illinois and owned by the defendants. The appellee further averred that they had extended the terms of the option for the purchase of said property, that they had extended the terms of the option and had notified the defendants of their intention to exercise the option. The Appellants refused to execute and deliver the warranty deed and the Appellee sought judgment of specific performance.

The defendants filed an answer in accordance with Supreme Court Rule 1--3, and thereafter they filed a special answer. The special answer alleged that the option had been abandoned and cancelled by the parties, and also asserted a counterclaim alleging fraud on the part of the plaintiff and anticipatory repudiation of the option by the plaintiff. The plaintiff thereafter filed a reply to the special answers and a general answer to the counterclaim.

After the issues were closed, the cause was submitted to the court for trial, and after the conclusion of all the evidence, the court entered its special findings of fact and conclusions of law, which found for the Appellee upon its complaint and against the Appellants upon their counterclaim. The court thereafter entered judgment on its said findings and conclusion.

Within the required statutory time, Appellants filed their motion for a new trial. The trial court granted argument thereon and took the same under advisement. It appears from the record that prior to the trial court's ruling on the Appellants' motion for new trial, the Appellee filed a motion to modify the judgment to make it conform to the special findings of fact and conclusions of law. Said motion was granted and thereafter the court modified its judgment. It appears that the court later overruled the Appellants' motion for a new trial.

The Appellants' motion for a new trial reads as follows:

'Defendants, and each of them, within thirty (30) days from the time when the decision in this cause was announced now move the court for a new trial herein on each of the following grounds:

'1. The decision of the Court is not sustained by sufficient evidence.

'2. The decision of the court is contrary to law.

'3. Error of law occurring at the trial, as follows: By failing to sustain the motion of the defendants at the conclusion of the plaintiff's evidence, which motion was renewed at the conclusion of all the evidence for a finding for the defendants.'

The Appellants' Assignment of Errors in this Court assigns as error the following:

'1. The court erred in overruling Appellants' motion for a new trial.

'2. The court erred in sustaining the Appellees' motion to amend the judgment filed at a term subsequent to the term in which the judgment was rendered, which motion prayed for a substantial change in the judgment.

'3. The court erred in rendering a judgment which was not in conformity with its decision.

'4. The court had no jurisdiction over the subject matter of the action.'

The Appellants in their first assignment of error state that 'The Court erred in overruling Appellants' Motion for a new trial.' However, we are of the opinion that this alleged error presents nothing to this court for our consideration.

It appears from the record now before us that the Appellants' Motion for New Trial was filed on August 31, 1966, at a time when the trial court was in vacation, and on September 17, 1966, during the September term of the Knox Circuit Court the Appellee filed its motion for the amendment of the judgment and to modify the decree which had been entered on August 8, 1966, during the August term of the court. The trial court later, on October 14, 1966, during the September term of the court, entered an order granting the motion to amend the judgment and later overruled the Appellants' Motion for a New Trial. The Appellants did not file a subsequent Motion for a New Trial after the judgment was amended.

We find the general rule applicable to such situations in Wiltrout, Indiana Practice, Vol. 2, Sec. 1784, at page 561, stated as follows:

'The Appellate Court has held that where the court, following the filing of a motion for a new trial, opens and amends the judgment, even though the new judgment is substantially similar to the original judgment, a second motion for a new trial is properly addressed to the amended judgment. The overruling of the first motion may not be presented as error on appeal.'

Our Court passed on a similar question in the case of Hedworth v. Chapman, et al. (1963), 135 Ind.App. 129, 131, 192 N.E.2d 649, 650. In that case we find the following:

'Following the appellants' motion for new trial, the court on its own motion opened and entered an amended judgment, substantially similar to the original judgment. The appellants' motion for a new trial addressed to this last decision is the determining factor as to the questions presented to us in this appeal. We will consider the assignment of errors based upon the second motion for a new trial * * *' (emphasis ours).

Therefore, we are of the opinion that the proper procedure to have saved the errors advanced in the first motion for a new trial would have been for the Appellants to have filed a second motion for a new trial after the original judgment had been opened and amended, or modified, and to have renewed the averred errors charged in the original motion for new trial.

The second error raised in the Appellants' assignment of errors was the sustaining of the motion to amend the judgment in a subsequent term of court from that in which the judgment was rendered. The trial court rendered its judgment during the August term of the Knox Circuit Court. The Appellants' Motion for a New Trial was filed on August 31, 1966, which was during vacation time. However, the ruling on the motion for a new trial was not made until the September term of the Knox Circuit Court. We are of the opinion that the filing of a motion for a new trial kept the cause in fieri, and that the judgment was subject to alteration or amendment until such time as the court ruled on the pending motion for a new trial. The filing of a motion for a new trial within the time allowed by the statute automatically extends the court's jurisdiction until such time as the court rules on the motion.

In the recent case of State ex rel. Rans, etc. v. St. Joseph Superior Court, etc. (1964) Ind., 201 N.E.2d 778, 779, our Supreme Court stated:

'We may reason in this case from the firmly established principle of common law that a trial court retains full and complete control of its records in an action during the term at which it enters a final judgment. Throughout the remainder of that term after the judgment is entered, the trial court may, upon its own motion or motion of party, correct, modify or vacate its judgment. The cause is said to be in fieri and in the breast of the court, and subject to the inherent judicial power of the court to alter or amend the judgment. 17 I.L.E. Judgments, § 161, p. 269; Clouser et al. v. Mock, et al. (1959) 239 Ind. 143, 155 N.E.2d 745; Jurdzy v. Liptak (1962) 243 Ind. 1, 180 N.E.2d 530.

'On the other hand, it has generally been held that a case is no longer in fieri after the term has expired within which a judgment is rendered, and after term there is no longer any authority on the part of the court to set aside or change the judgment under the common law. Jurdzy v. Liptak, supra, at pp. 3, 4, 180 N.E.2d at p. 531.

'The judgment in this case was entered on June 27, 1963, in the May term. Normally, the jurisdiction of the court over that judgment, so far as modification, amendment, etc., ended in the May term in which it was rendered. However, the filing of a motion for a new trial within the time provided by the statute automatically extends the court's jurisdiction until the court may rule upon the motion for a new trial. 22 I.L.E. New Trial, § 124, p. 108.' (Emphasis ours.)

The third error assigned by the Appellants was that the 'Court erred in rendering a judgment which was not in conformity with its decision.'

We find the general rule of law applicable well stated in the case of Spivey v. Frazee and others (1856) 7 Ind. 661, 662, as follows:

'When a bill contains a prayer for general as well as a special relief, the court may mould the decree to meet the case made in the record.'

Also, in the case of State ex rel. Suprise et al. v. Porter Circuit Court, et al. (1948) 226 Ind. 375, 80 N.E.2d 107, our Supreme Court held:

"There is no principle of law more firmly established than the judgment must follow and conform to the verdict, decision or findings in all substantial particulars.' 33 C.J. 1169, § 106; 49 C.J.S., Judgments, § 55. A judgment must also conform to the pleadings. 'This rule is of universal application, and whether the action or suit is at law, in equity, or under the code, the judgment must be secundum allegata et probata.' 33 C.J. 1143, § 87; 49 C.J.S., Judgments, § 49.' Also see Fleser et al. v. Aranjo et al. (1954), 125 Ind.App. 160, 168, 123 N.E.2d 248.

It appears from the record that the court found, in substance:

'* * * for the plaintiff upon the plaintiff's complaint, and...