State ex rel. Drudge v. Davisson

• Decision Date: 29 November 1910
• Docket Number: No. 21,768.,21,768.
• Citation: 174 Ind. 705,93 N.E. 6
• Parties: STATE ex rel. DRUDGE v. DAVISSON, County Surveyor.
• Court: Indiana Supreme Court

174 Ind. 705

93 N.E. 6

STATE ex rel. DRUDGE

v.DAVISSON, County Surveyor.

No. 21,768.

Supreme Court of Indiana.

Nov. 29, 1910.

Appeal from Circuit Court, Fulton County; Harry Bernetha, Judge.

Mandamus by the state on the relation of Jere Drudge against A. Clinton Davisson, county surveyor. From a judgment for defendant, relator appealed to the Appellate Court and it (92 N. E. 664) transferred the cause to the Supreme Court. Affirmed.Rowley & Mattice, for appellant. J. H. Bibler and Holman & Stephenson, for appellee.

HADLEY, J.

In a regular proceeding, the relator entered into a contract with appellee, as county surveyor, to clean out a part of an established public ditch. The relator, claiming to have completed the job according to the contract, demanded approval and acceptance by appellee, and payment, which was refused on the ground that the work was not performed as required by the contract. Whereupon, the relator brought mandamus to enforce, against appellee, an approval and payment. The only issue tried was, whether the work had been accomplished in accordance with the contract. The trial was before the court. Many witnesses were called and examined by both parties, and there was a finding and judgment against appellant.

The latter assigned but two reasons for a new trial, as follows: (1) The judgment is not sustained by sufficient evidence. (2) The judgment is contrary to law. The motion for a new trial was overruled, and in this court he makes the following assignments of error: (1) The court erred in overruling appellant's motion for a new trial. (2) The judgment appealed from is not fairly supported by the evidence. (3) The decision of the court is not fairly supported by the evidence. (4) The judgment appealed from is clearly against the weight of the evidence. (5) The decision of the court is clearly against the weight of the evidence. As contended by appellee, these assignments are insufficient to present any question to this court.

First, as to the causes assigned for a new trial: The complaint is not addressed to the finding of the court, as the statute contemplates (section 585, Burns' Ann. St. 1908), but to the judgment based upon that finding. The important distinction between the two seems to have been overlooked. A finding of the court, or verdict of the jury, may be fully sustained by the evidence, and the judgment rendered upon that finding, or verdict, erroneous. Such an occurrence is not infrequent. Hence, our Code of Procedure requires that the remedy for an imperfect finding upon the facts in issue must be sought by a motion for a new trial, thus to give the trial court, upon a review, an opportunity to correct the error, and the remedy for an imperfect judgment rendered upon the facts found must be sought by a motion to modify the same. A new trial of the cause can effect no relief in cases where the vice or imperfection complained of is rooted in the form or substance of the judgment. Section 585, supra, enumerates eight causes for which a new trial may be granted, but we find no sanction in any of them for entertaining those presented by appellant. Such has been the unvarying ruling of this court. Hall v. McDonald, 171 Ind. 9-18, 85 N. E. 707;Migatz v. Stieglitz, 166 Ind. 361, 364, 77 N. E. 400;Lynch v. Harvester Co., 159 Ind. 675, 65 N. E. 1025;Gates v. Railroad Co., 154 Ind. 338, 56 N. E. 722;...