State, ex rel. Downard v. Templin

• Decision Date: 07 February 1890
• Docket Number: 15,210
• Citation: 23 N.E. 697,122 Ind. 235
• Parties: The State, ex rel. Downard, Administrator, v. Templin et al
• Court: Indiana Supreme Court

23 N.E. 697

122 Ind. 235

The State, ex rel. Downard, Administrator, v. Templin et al

No. 15,210

Supreme Court of Indiana

February 7, 1890

Petition for a Rehearing Overruled Feb. 20, 1890.

From the Hendricks Circuit Court.

Judgment reversed, with costs, with directions to redocket the action and proceed in accordance with this opinion.

C Foley, for appellant.

L. M Campbell, for appellees.

OPINION

Berkshire, J.

This is an action upon an administrator's bond. The complaint was in one paragraph, but alleged five different breaches of the bond.

Answers were filed, and to the second paragraph of the separate answer of the appellee Sarah Templin the appellant filed a reply, and the case being at issue was submitted to the court for determination, and a special finding asked for.

Afterwards the court made a special finding, and, upon the facts found, stated, as conclusions of law, that the appellant was entitled to recover on the third alleged breach of the bond, and on the others that the appellees were entitled to a judgment.

Thereupon the appellees paid into court the amount found in appellant's favor upon the said third assigned breach, and moved the court to tax certain items of cost against the appellant; which motion the court sustained, and rendered judgment against the relator for the amount. Afterwards the appellant moved for a new trial of the issues joined on the first alleged breach of the bond, and also moved for an order upon the clerk to pay to the relator the said sum of money paid into court by the appellees.

The court made the desired order with reference to the said money, and also sustained the motion for a new trial, and, by the language of the order made, limited the new trial to the issues joined upon the first alleged breach of the bond, and then continued the cause.

At the next following term of said court the appellees moved the court to strike the case from the docket, which motion was sustained, and the appellant reserved the proper exception.

From the judgment of the court striking the case from the docket this appeal is taken, and the only question presented for our consideration is the propriety of the court's ruling in sustaining said motion and rendering said judgment.

In our opinion the action of the court in this particular was erroneous.

As the appellant, by his motion, only demanded a new trial as to a part of the issues, and not as to the whole case, it may have been error for the court to entertain the motion, but the action of the court in entertaining and sustaining the motion was not void.

Jurisdiction over the subject-matter and of the person was complete, hence none of its proceedings could be treated as having no binding force or effect.

All of its proceedings were binding upon the parties until set aside upon proper steps being taken, by its own action, or upon appeal to this court.

If the appellees had moved in the court below for a vacation of the order granting a new trial, and their motion had been sustained, they would have been relieved from the operation of the said order at least until set aside in the same manner or appealed from after final judgment. But the appellees did not see proper to pursue either the course indicated or take an appeal, but elected to treat the order as a nullity, and attempted to get rid of it by an attack in its nature collateral. This they could not successfully do.

Suppose the court had overruled their motion to strike the case from the docket, and gone on and tried the issues over again as to the first alleged...