Stamper v. Link
| Decision Date | 26 November 1946 |
| Docket Number | 17500. |
| Citation | 69 N.E.2d 600,117 Ind.App. 212 |
| Parties | STAMPER v. LINK. |
| Court | Indiana Appellate Court |
Appeal from Probate Court, Marion County; Lewis W. Marine, Special Judge.
Proceeding in the matter of the estate of Adam W. Sherer, deceased wherein Laura Stamper filed a claim against the estate based on a note and mortgage in security thereof, executed by the deceased, and wherein Catherine S. Link, administratrix with the will annexed of the estate of Adam W. Sherer deceased, filed a set-off. From a judgment denying both the claim and the set-off, Laura Stamper appeals.
Judgment against Laura Stamper reversed with instructions to sustain her notion for a new trial.
See also, Ind.App., 66 N.E.2d 326.
Othniel Hitch and Curtis W. Roll, both of Indianapolis, for appellant.
Means & Buenting, of Indianapolis, for appellee.
On November 6, 1944, the appellant filed a claim against the estate of Adam W. Sherer, deceased, based upon a note and mortgage, in security thereof, executed by said decedent under date of April 9, 1941, for the sum of $800 with interest and attorney's fees. To this claim the appellee addressed a set-off wherein it is alleged in substance that the appellant is indebted to the estate of Adam W. Sherer deceased in the sum of $1433.45 for personal property household goods and furnishings belonging to said estate and taken by the appellant from the home of the decedent after his death and converted by said appellant to her own use.
This claim and set-off came on for trial to the court on December 5, 1945, and, to make her case, the appellant proved the due execution of the mortgage above mentioned, introduced the same in evidence and then rested. The note was not produced nor was its absence in any way explained. The appellee's evidence is devoted entirely to the proof of his set-off. Trial was concluded on December 5, 1945 and the court thereupon took the case under advisement. On December 18, 1945, the appellant filed a written dismissal of her claim in open court and on December 21, 1945, the court, on its own motion, expunged such dismissal from the record on the grounds that it had announced its decision previous to the filing thereof and thereupon duly entered of record a finding against the appellant on her claim and against the appellee on his set-off. Judgment went accordingly.
The appellant contends that the judgment against her claim is contrary to law (1) because the court was without jurisdiction to render judgment thereon after she had dismissed the same, and (2) that proof of the execution of the mortgage in suit and the introduction of the same in evidence made a prima facie case entitling her to a judgment in view of the fact that there is an entire absence of proof to the contrary.
Sec. 2-901, Burns' 1946 Replacement provides as follows: No action of the court can deprive the plaintiff of his right to dismiss if the exercise thereof is timely. Wainwright v. P. H., etc., Roots Co., 1912, 176 Ind. 682, 97 N.E. 8; Louisville v. New Albany & Chicago Railway Company v. Wylie, 1891, 1 Ind.App. 136, 27 N.E. 122; Halstead v. Sigler, 1905, 35 Ind.App. 419, 74 N.E. 257.
A finding is not 'announced' within the meaning of the above statute, until it is orally announced in open court or, by order of the court, spread of record, so as to bring the ruling to the notice of all parties. Wainwright v. P. H., etc., Roots Co., supra; Moore-Mansfield Const. Co. v. Marion, etc., Co., 1913, 52 Ind.App. 548, 101 N.E. 15. The only matter spread of record concerning an announcement of its decision by the court prior to the dismissal of the appellant's claim is the following orderbook entry: 'And afterwards, to-wit, December 21, 1945, being the 17th Judicial day of the December Term, 1945, of said Court, before the Hon. Lewis E. Marine, Special Judge thereof, the following further proceedings were had wherein, to-wit: (1) Dismissal of claimant, on motion of the court, is hereby denied, overruled and expunged from the record, the court having previously announced its finding herein.' There is nothing brought into the record by way of a special bill of exceptions indicating that the court orally announced its decision in open court prior to the filing of the dismissal.
This case was tried before a special judge and, aside from a mere recital in connection with his ruling on the appellant's dismissal of her claim, there is nothing in the record that indicates that such judge sat, for any purpose in connection herewith, from December 5, 1945, when the trial was concluded and he took the matter under advisement until December 18 1945, when said dismissal was filed. Despite the absence of record indication it is possible, of course, that the court's finding was announced orally in open court prior to the dismissal of the appellant's claim. The trial court says it was and there is nothing but the mere silence of the record to impeach his recital to that effect. We are required to indulge all presumptions and...
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