State ex rel. Conner v. Pritchard
| Decision Date | 21 April 1944 |
| Docket Number | 17257. |
| Citation | 54 N.E.2d 283,115 Ind.App. 55 |
| Parties | STATE ex rel. CONNER v. PRITCHARD, Judge. |
| Court | Indiana Appellate Court |
Leo X. Smith and Albert Stump, both of Indianapolis, for relator.
Armstrong & Gause, of Indianapolis, for respondents.
On April 6, 1944, the relator filed a petition in this court for a writ of mandamus directing the respondent, as Judge of the Marion Superior Court, Room Four, to settle and sign the relator's bill of exceptions No. 3 tendered in a cause now pending in said court wherein one Edgar L. Jones is the plaintiff and said relator is the defendant and wherein an appeal from final judgment has been taken to this court. We thereupon issued an alternative writ ordering the respondent to settle and sign said bill of exceptions or show cause why he should not do so and to such writ the respondent filed a return on April 13 1944.
The relator's petition alleges in substance that, on the 3rd day of January, 1942, the said Edgar L. Jones brought suit against him to recover damages for personal injuries resulting from an accident alleged to have been due to the sole fault of said relator. Said suit was instituted in the Marion Superior Court, Room Four, and was tried in said court before the Hon. Walter Pritchard, the duly elected and qualified judge thereof, and a jury on the 19th day of November, 1943, and on the 24th day of November 1943, a verdict was returned for the plaintiff and against the relator in the sum of $5,000. On the 20th day of December, 1943, the relator filed a motion for a new trial in said cause which charged, as one of the grounds therefor that the verdict of the jury is not sustained by sufficient evidence. Said motion was briefed and argued orally to the court, and in both his brief and argument the relator urged that it was the duty of the respondent, as the trial judge, to determine for himself whether the jury's verdict was supported by a preponderance of the evidence and, if not so supported, to sustain said motion. On February 8, 1944, the respondent overruled said motion for a new trial and on the same day wrote and mailed to the relator's attorneys of record the following letter:
Within the time allowed therefor, the relator prepared his bill of exceptions No. 3 containing a copy of the above letter and the facts regarding the writing and mailing thereof and tendered the same to the respondent with the request that it be settled and signed and ordered filed as a part of the record of said cause, all of which said respondent refused and still refuses to do.
The respondent, by way of return to the alternative writ heretofore issued by this court, seeks to justify his refusal to settle and sign said bill of exceptions on the following grounds: (1) The contents of said bill constitute no part of the trial of said cause; (2) the letter involved was written subsequent to the ruling on the motion for a new trial and constitutes no part of any judicial opinion rendered by the respondent in connection with his ruling on said motion for a new trial; (3) the matters contained in said bill are wholly immaterial to the determination of relator's rights on appeal; and (4) that said bill would be useless to relator if signed and filed.
On April 17, 1944, the relator filed a written motion for judgment on the pleadings which motion is predicated on the theory that the above return, in effect, admits that the respondent overruled the motion for a new trial without weighing the evidence and determining whether the jury's verdict is supported by a preponderance thereof; that it joins no issue of fact and on the facts pleaded the law is with the relator.
It has long been the settled law of of this State that when a motion for a new trial is grounded on the assertion that the verdict of the jury is not supported by sufficient evidence 'the trial judge becomes the judge of the weight of the evidence, and if in his opinion the preponderance of the evidence is against the verdict so strong that he should have felt compelled to have found the other way, the law makes it his duty to grant the motion for a new trial.' Cincinnati, H. & I. R. Co. v. Madden, 1893, 134 Ind. 462, 469, 34 N.E. 227, 229. See also Christy v. Holmes, 1877, 57 Ind. 314; George H. Hammond & Co. v. Schweitzer, 1887, 112 Ind. 246, 13 N.E. 869; Cleveland etc., R. Co. v. Baker, 1921, 190 Ind. 633, 128 N.E. 836; Borenstein, Adm'r, v. Uhl, 1939, 107 Ind.App. 67, 20 N.E.2d 189; State ex rel. Winslow v. Fisher, Clerk, 1941, 109 Ind.App. 644, 37 N.E.2d 280.
This court, however, will indulge the presumption that the trial judge, in overruling the motion for a new trial, performed his duty and weighed the evidence, unless there is something in the record which definitely discloses that he did not do so. Indianapolis, etc., Traction Co. v. Harrell, 1922, 192 Ind. 188, 134 N.E. 871; Chicago, etc., R. Co. v. Rans, 1927, 86 Ind.App. 300, 154 N.E. 876; Id., 87 Ind.App. 452, 161 N.E. 656. It therefore becomes apparent that if the relator is to present to this court, on his appeal from the judgment rendered in Jones v. Conner, the question of the alleged failure of the respondent to weigh the evidence in considering the relator's motion for a new trial, the presence in the record of the letter set out in said bill of exceptions becomes important.
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State ex rel. Conner v. Pritchard, 17257.
...115 Ind.App. 5554 N.E.2d 283STATE ex rel. CONNERv.PRITCHARD, Judge.No. 17257.Appellate Court of Indiana, in Banc.April 21, Original proceeding by the State of Indiana, on the relation of Ernest L. Conner, against Walter Pritchard, as Judge of the Superior Court Room 4 of Marion County, for ......