Neyens v. Flesher

• Decision Date: 30 January 1907
• Docket Number: No. 6,152.,6,152.
• Citation: 39 Ind.App. 399,79 N.E. 1087
• Parties: NEYENS v. FLESHER et al.
• Court: Indiana Appellate Court

39 Ind.App. 399

79 N.E. 1087

NEYENS

v.FLESHER et al.

No. 6,152.¹

Appellate Court of Indiana, Division No. 1.

Jan. 30, 1907.

Appeal from Circuit Court, Jay County; Jno. T. La Follette, Judge.

Action by Leonard M. Neyens against Joe Flesher and another. From a judgment for defendants, plaintiff appeals. Dismissed.

J. W. Headington and R. D. Wheat, for appellant.

HADLEY, J.

In this cause appellees have filed a motion to dismiss the appeal, averring as reasons therefor (1) that the appeal is premature, being upon an interlocutory judgment for costs; (2) that the record in said cause does not exhibit a final judgment.

The complaint was in two paragraphs. Demurrers were filed to the same and overruled, whereupon affirmative answers were filed to each paragraph, to which answers appellant, plaintiff below, demurred, and upon submission the demurrers were carried back and were sustained to the complaint. Appellant asked and obtained leave to amend, but afterwards withdrew the request to amend, whereupon the court entered the judgment as follows: “It is therefore considered and adjudged by the court that the defendants Joe Flesher and Jerry Flesher do have and recover from the plaintiff, Leonard Neyens, their costs and charges in and about this cause laid out and expended.” Whereupon appellant prayed an appeal. This is the only judgment shown by the record.

Under our statute appeals to this court and the Supreme Court are only authorized from final judgments. Burns' Ann. St. 1901, §§ 644-13370, with the exceptions as enumerated in section 658, Burns' Ann. St. 1901. The case at bar does not come within either of the exceptions of said section 658, and hence must be governed by the provisions of said sections 644 and 1337o. Therefore the decision of this case hinges upon the determination of the question whether the above-quoted entry is a final judgment from which an appeal lies. A judgment of a court is something more than a finding of the facts in controversy. It is the solemn sentence of the law pronounced by the court upon the facts found. Bouvier's Inst. vol. 3, § 3297; Needham v. Gillaspy et al., 49 Ind. 245. “A judgment,” says Black, “is always a declaration that a liability, recognized as within the jural sphere, does or does not exist.” “An action is instituted for the enforcement of a right, or the redress of an injury. Hence a judgment, as the culmination of the action, declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other. But as no right can exist without a correlative duty, nor any invasion of it without a corresponding obligation to make amends, the judgment necessarily affirms, or else denies, that such a duty or such a liability rests upon the person against whom the aid of the law is invoked.” Black on Judg. § 1; Whitwell v. Emory, 3 Mich. 84, 59 Am. Dec. 220; Mahoning Bank's Appeal, 32 Pa. 160. No matter how clearly and decisively the entries in the record may indicate what the ultimate judgment or the sentence of the law when pronounced will be, until it is so pronounced there is no judgment. Even though the court has fully found the facts and stated the conclusions of law, or the jury has returned a complete verdict which has been accepted and filed, neither of these acts will constitute a judgment. Elliott's App. Prat. § 83; Murray v. Scribner, 70 Wis. 228, 35 N. W. 311; Black on judgments, § 3; Whitwell v. Emory, supra; Putnam v. Crombie, 34 Barb. (N. Y.) 232;Warren v. Shuman, 5 Tex. 441;Scott v. Burton, 6 Tex. 322, 55 Am. Dec. 782;Lisle v. Rhea, 9 Mo. 172;Northcutt v. Buckles et al., 60 Ind. 577;City of Jeffersonville v. Tomlin, 7 Ind. App. 681, 35 N. E. 29;James v. Lake Erie, etc., Ry. Co., 144 Ind. 630, 43 N. E. 876. A final judgment is one that at once disposes of all the issues, as to all the parties, involved in the controversy presented by the pleadings, to the full extent of the power of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues. Elliott's App. Proc. §§ 83, 85; Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. 15, 27 L. Ed. 73;Grant v. Insurance Co., 106 U. S. 429, 1 Sup. Ct. 414, 27 L. Ed. 237;St. Louis, etc., Ry. Co. v. Southern Express Co., 108 U. S. 24, 2 Sup. Ct. 6, 27 L. Ed. 638;Champ et al. v. Kendrick, Trustee, 130 Ind. 545, 30 N. E. 635;Western Union Tel. Co. v. Locke, 107 Ind. 9, 7 N. E. 579;Brannock v. Stocker, 76 Ind. 573; Needham v. Gillaspy, supra; Hamrick, Trustee, v. Loring, 147 Ind. 229, 45 N. E. 107;Keller v. Jordan et al., 147 Ind. 113, 46 N. E. 343; Sprick v. Washington County, 3 Neb. 253; People v. Severson, 113 Ill. App. 496. Costs of litigation form no part of the matter in controversy in a suit. They are mere incidents, or necessary appendages to which the maxim of the civil law that victus victori in expensis condemnandus est applies. Being no part of the matter in controversy, it has been held with practical unanimity that a judgment for costs merely is an interlocutory, and not a final judgment. Black on judgments, § 31; People v. Severson, supra; Metzger v. Morley, 184 Ill. 81, 56 N. E. 299;Lee v. Yanaway, 52 Ill. App. 23; Sprick v. Washington, supra; Riddle v. Yates, 10 Neb. 510, 7 N. W. 289; Warren v. Shuman, supra; Scott v. Burton, supra; Hancock v. Metz, 7 Tex. 178;Eastham, Ex'r, v. Sallis, 60 Tex. 576; Lisle v. Rhea, supra; Higbee et al. v. Bowers, 9 Mo. 354;Young, Adm'r, v. Stonebreaker et al., 33 Mo. 117;Smarr v. McMaster, 34 Mo. 204;Boggess v. Cox, 48 Mo. 278;Preston v. Missouri, etc., Co., 48 Mo. 541;Zahnd v. Darling, 48 Mo. 557;Evans et al. v. Russell et al., 61 Mo. 37;Adams v. Trigg, 35 Mo. 190;Martindale v. Brown et al., 18 Ind. 284;Wood v. Wood, 51 Ind. 141; Keller v. Jordan, supra. Strictly speaking, a judgment for the defendant either upon a ruling upon a demurrer and refusal to plead further, or upon the finding of a court or verdict of a jury to show a final determination of the matter in controversy, should be: “That the plaintiff take nothing by his suit, nil capiat per breve, and that the defendant go without day, eat inde sine die.” Bouvier's Inst. §§ 3300, 3302; Archbold's Forms, 129-299; Thomas, Adm'r, v. Chicago, etc., Ry. Co., 139 Ind. 462, 39 N. E. 44; Sprick v. Washington Co., supra; Warren v. Shuman, supra; Lisle v. Rhea, supra; Young, Adm'r, v. Stonebreaker (note) supra; Boggess v. Cox, supra; People v. Severson, supra. And while, under the more liberal forms of procedure of the present day, the exact form or words of a judgment, given above may not be required, yet more modern procedure has not gone so far as to adjudge that to be a final judgment which does not show on its face by some appropriate words, that the court pronounced the sentence of the law, upon facts found as to the merits of the controversy. Our Code of Procedure requires that the court or jury trying the cause shall find, either generally or specially, the facts for the plaintiff or defendant, and the court shall pronounce judgment in conformity therewith. Burns' Ann. St. 1901, §§ 554, 560, 573.

In the case at bar the complaint was founded upon two instruments of writing averred to be negotiable promissory notes executed and delivered by appellees; that said notes were due and unpaid, and judgment was demanded by appellant against appellees for the amount of said notes. This, then, was the subject-matter of the controversy between the parties. Were appellees liable to appellant upon his demand as demanded, and should the court extend the aid of the law thus invoked? Upon these questions the judgment exhibited by the record is silent. So far as the record discloses, these questions are still open, and the court could grant leave to appellant to amend the complaint and proceed further if it so desired. There is no nil capiat per breve or eat inde sine die. It is true, there is a judgment for costs, but, as we have shown, costs are mere incidents to a litigation and form no part of the subject-matter of a suit. We are not without authority for our conclusions in this matter.

In the case of Western Union Telegraph Co. v. Locke, supra, the appellant prosecuted his appeal from an order directing it to produce a written instrument, and the appellee denied its right to appeal from such order. It was there held that an appeal will only lie from a final judgment except such orders as were expressly provided for by the statute, and it was held that such an order was not a final judgment. On page 11 of 107 Ind., page 580 of 7 N. E., the court, speaking on this point, clearly defines a final judgment in this language: “A final judgment is the ultimate determination of the court upon the whole matter in controversy in the action. An order of the court, made in the progress of the cause, requiring something to be done or observed, but not determining the controversy, is an interlocutory order, and is sometimes called an ‘interlocutory judgment.”’ Pfeiffer v. Crane, 89 Ind. 485. “Mr. Freeman says: ‘The general rule recognized by the courts of the United States, and by the courts of most, if not of all, the states, is that no judgment or decree will be regarded as final within the meaning of the statutes in reference to appeals, unless all the issues of law and of fact necessary to be determined were determined, and the case completely disposed of so far as the court had power to dispose of it.”’

In the case of James v. Lake Erie & Western Ry. Co., supra, appellee filed a demurrer to the amended complaint of the appellant, which demurrer was sustained, and to which ruling of the court appellant excepted. The only error assigned was the ruling of the court upon said demurrers. The final entry of the proceedings in the court below was as follows: “Comes now the parties by counsel, and the demurrer to the complaint is sustained by the court, to which ruling of the court the plaintiff (appellant) excepts and...