Spangler v. Armstrong Rubber Co.

• Decision Date: 11 December 1961
• Docket Number: No. 2,No. 19281,19281,2
• Citation: 178 N.E.2d 764,133 Ind.App. 411
• Parties: Jesse S. SPANGLER, Appellant, v. ARMSTRONG RUBBER COMPANY, a Corporation, Appellees
• Court: Indiana Appellate Court

Page 764

178 N.E.2d 764

133 Ind.App. 411

Jesse S. SPANGLER, Appellant, v. ARMSTRONG RUBBER COMPANY, a Corporation, Appellees.

No. 19281.

Appellate Court of Indiana, Division No. 2.

Dec. 11, 1961.

Rehearing Denied Jan. 25, 1962.

George C. Uhlir, Marshall, Hillis & Hillis, Kokomo, for appellant.

Shirley & Helms, Kokomo, for appellee.

GONAS, Judge.

Appellee brought this action on a written guaranty executed by appellant, guaranteeing the payment by Bud Carson Tire Service, Inc., for goods sold to it.

The issues upon which the case was tried were formed by appellee's complaint, appellant's answer, and appellee's reply, the latter pleading having been filed on September 15, 1956. Four months after the issues were closed, and nine days before the date set for trial, appellant filed a counterclaim and a request for a jury trial.

Appellee filed its motion to strike the counterclaim because it was filed after the cause was at issue, so shortly before the date set for trial, and without leave of court having first been obtained to file it, this motion was sustained. The case was not tried on the date set, but was tried without a jury late in 1957.

Appellant insists that it was error for the court to try the cause without the intervention of a jury. The record does not disclose the renewal of the request for a jury trial prior to the commencement of the trial or any objection made at the time.

Rule 1-8A of the Supreme Court was amended in 1958. At the time pertinent here, it read as follows;

'A jury trial in other than criminal cases, where trial by jury may now be had, may be requested by any party within ten (10) days after the closing of the issues upon the cause is tried. A jury not so requested shall be deemed waived.'

Appellant did not request a jury trial within ten (10) days after the closing of the issues upon which the cause was tried, and therefore under Rule 1-8A waived a jury trial.

Also presented as error is the action of the trial court in striking out appellant's counterclaim. The matter of permitting the opening of the issues for the purpose of filing additional pleadings and amending pleadings after the issues are closed is within the sound legal discretion of the trial court. Unless it is shown that there has been an abuse of such discretion, with prejudice resulting to appellant, it will be presumed that there was no error. Burr v. Mendenhall (1875), 49 Ind. 496. Bever v. North (1886), 107 Ind. 544, 8 N.E. 576; The Louisville, New Albany and Chicago Railway Co. v. Hubbard (1888), 116 Ind. 193, 18 N.E. 611; Case v. Moorman (1900), 25 Ind.App. 293, 58 N.E. 85; Calumet Lumber Co. v. Pearson Rec. (1940), 107 Ind.App. 343, 24 N.E. 793.

The counterclaim is quite lengthy, but we think appellant properly summarizes it in his brief as follows;

'* * * the appellant charges in his counter-claim, in effect, that he was induced through the fraud, actual and constructive, of the appellee to carry on and prolong the operation of a business by selling merchandise at wholesale and retail at certain prices dictated by the appellee which brought on a loss to the business and led to ruination.'

Appellant's second paragraph of answer to the complaint, while more concisely stated, was in substance, to the same effect. It raised the same issue of fraud as was alleged in the counterclaim, and on this issue the finding of the trial court was against appellant. Appellant states in his brief that he waives any comment on the issues raised by the second paragraph of answer, bearing upon fraud 'because this might raise the question on which side has the preponderance of the evidence.' As stated by the Supreme Court in Horace F. Wood Transfer Co. v. Shelton (1913), 180 Ind. 273, 276, 101 N.E. 718, 719:

'It is next urged that the trial court erred in sustaining appellees' motion to strike out the first and second paragraphs of appellant's cross-complaint.

'* * * This issue and each of the other issues which appellant sought to present by its cross-complaint were adjudicated in the main action, and the finding of the jury thereon was against ...