Sauer v. Sauer

• Decision Date: 01 December 1921
• Docket Number: No. 11055.,11055.
• Citation: 133 N.E. 169,77 Ind.App. 22
• Parties: SAUER v. SAUER et al.
• Court: Indiana Appellate Court

77 Ind.App. 22

133 N.E. 169

SAUER

v.SAUER et al.

No. 11055.

Appellate Court of Indiana, Division No. 1.

Dec. 1, 1921.

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Action by Albert Sauer, for whom Wilhelmina Sauer, as administratrix of the estate of Albert Sauer, deceased, was substituted, against Constance G. Sauer and Frederick W. Sauer. Judgment for plaintiff against last-named defendant and against plaintiff in favor of first-named defendant, and plaintiff appeals. Affirmed.

Woolen, Cox & Welliver, of Indianapolis, and McAleer, Dorsey & Gillett, of Hammond, for appellant.

Ibach, Gavit, Stinson & Gavit, of Hammond, for appellees.

BATMAN, P. J.

The record discloses that appellant's decedent commenced this action against appellees to recover judgment on a promissory note, and to foreclose a mortgage alleged to have been given to secure the same. Appellee Frederick W. Sauer was defaulted. Issues were joined by his coappellee, Constance G. Sauer, and a trial had by the court. At the conclusion of the evidence the judge trying the cause stated in open court that he “found for the plaintiff against the defendant Frederick W. Sauer, and in favor of the defendant Constance G. Sauer, on the grounds of suretyship,” and requested the attorney of appellant's decedent “to bring in the note so that the proper amount then due on said note could be ascertained.” This statement and request was made on April 30, 1919, and during the March term, 1919, of the trial court. No further steps were taken in said cause until October 2, 1919, being the 22d judicial day of the September term, 1919, of said court, when appellant's decedent filed a motion to dismiss the cause at his cost, without prejudice. Thereupon the following entry was made on the records of the trial court by the clerk thereof, without the knowledge of the trial judge, and the same was signed by said judge, along with others, without any knowledge that such entry had been made:

“Comes now the plaintiff, and dismisses his complaint at his own costs without prejudice.

It is therefore considered, adjudged, and decreed by the court that the defendant have and recover of and from the plaintiff all their costs herein laid out and expended.”

On October 20, 1919, the same being the thirty-seventh judicial day of the September term, 1919, of said court, appellee Constance G. Sauer filed a motion to set aside said order of dismissal, entered on October 2, 1919, and asked that judgment be entered on the finding theretofore made and announced by the court. No action was taken on said motion at said September term. Afterwards, on November 10, 1919, the same being the first judicial day of the November term of said court, appellee, Constance G. Sauer, filed an amended motion, asking the same relief, in which the grounds therefor were more fully stated. The record fails to show that any formal ruling was made on said motion; but, on the seventeenth judicial day of said November term, the court expunged the said entry of dismissal and judgment for costs, made by the clerk on October 2, 1919, and, having considered the motion to dismiss this cause, filed by appellant's decedent on said date, overruled the same. Thereupon judgment was rendered in favor of appellee Constance G. Sauer, and against her coappellee. Appellant's decedent then filed a motion for a new trial, which was overruled, and this appeal followed.

[1][2] Appellant contends that the court had no authority to expunge the record of dismissal and set aside the judgment for cost entered on October 2, 1919, after the expiration of the September term, at which such record was made and judgment entered. It bases this contention on the ground that, after the expiration of said term, the cause was no longer in fieri. In reaching this conclusion appellant has evidently overlooked the fact that appellee Constance G. Sauer filed her motion to set aside said order of dismissal at the same term at which it was entered, or has failed to give such fact proper effect. It is well settled that a cause remains in fieri during the term at which judgment is rendered, but it may remain in fieri beyond such term, where a motion is made during such term to vacate or amend the same. 23 Cyc. 861 and 904. The Supreme Court of this state has, in effect, so held in the case of Vesey v. Day (1910) 175 Ind. 406, 94 N. E. 481, wherein it is said:

“It is settled in this state that courts have full and complete control of the record of their proceedings during the entire term at which such proceedings are had, and that no notice of a motion to set aside a judgment is necessary, if it is made during the term of court at which said judgment was rendered. *** If such motion is made at the term at which the judgment was rendered, it may be continued to a subsequent term, and the judgment may be then vacated.”

This is in harmony with the decisions in many other jurisdictions where the subject has been considered. Blake v. Baker (Okl.) 167 Pac. 329;Grubb v. Milan, 249 Ill. 456, 94 N. E. 927;Ricketts v. Finkelston (Mo. App.) 211 S. W. 391;Cole v. State, 73 W. Va. 410, 80 S. E. 487, Ann. Cas. 1916D, 1256;Philip, etc., Co. v. Vickers, 38 Okl. 643, 134 Pac. 851;Bottigliero v. Cozzi, 176 Ill. App. 311;Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797;Niles v. Parks, 49 Ohio St. 370, 34 N. E. 735;Dye v. Denver, etc., R. Co., 101 Kan. 666, 168 Pac. 1087. The fact that no order for a continuance of the cause was made during the term at which such motion was filed is of no significance, as section 1447, Burns' 1914, provided that-

“If at the end of the term of any court, any matters pending...