State ex rel. Sanders v. Circuit Court of Shelby County

• Decision Date: 24 May 1962
• Docket Number: No. 30166,30166
• Citation: 243 Ind. 343,182 N.E.2d 781
• Parties: STATE of Indiana on the Relation of James SANDERS, Relator, v. The CIRCUIT COURT OF SHELBY COUNTY, Harold G. Barger, as Judge of the Circuit Court of Shelby County, Respondent.
• Court: Indiana Supreme Court

Page 781

182 N.E.2d 781

243 Ind. 343

STATE of Indiana on the Relation of James SANDERS, Relator, v. The CIRCUIT COURT OF SHELBY COUNTY, Harold G. Barger, as Judge of the Circuit Court of Shelby County, Respondent.

No. 30166.

Supreme Court of Indiana.

May 24, 1962.

Alan H. Lobley, R. Stanley Lawton, Indianapolis, for relator. Ross, McCord, Ice & Miller, Indianapolis, Brunner, Brown & Brunner, Shelbyville, of counsel.

Ralph Adams, Shelbyville, Grant Rogers, Franklin, Emmert & Robison, Adams, Cramer & Glass, Shelbyville, for respondent.

JACKSON, Judge.

Relator has brought this original action for a writ of mandate seeking to mandate the respondents to accept a 'Motion for New Trial' which relator seeks to file, and to rule thereon. Respondents have filed their objections to relator's petition alleging that it should be denied and that no alternative writ should issue.

The proceedings in the respondent court were initiated by the filing of an action in replevin by one esther Sanders as Administratrix of the Estate of Claude C. Sanders, deceased, as plaintiff, against Marie Randolph and James Sanders (relator herein) as defendants. A trial was had, and on December 17, 1955, the respondent court entered judgment against the relator, James Sanders, and his co-defendant, Marie Randolph, for wrongfully taking property from the decedent of which the plaintiff in her fiduciary capacity as administratrix of the estate of said decedent was now the owner.

The property was specifically described in the decree, and was adjudged to have a value of Five Thousand Dollars ($5,000) at the time of the wrongful taking. Because of its importance here we quote from a portion of said decree:

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY

THE COURT that the defendants, after the wrongful taking of said personal property, have unlawfully sold and disposed of many items of said property and have wrongfully failed to take proper care of other items of said property and allowed the same to deteriorate and to suffer great depreciation in value, and thereby have made it impossible to deliever and return the possession of said personal property to the plaintiff.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that upon and by reason of the failure of the defendants to deliver and return said personal property and each item thereof to the plaintiff, the plaintiff recover of and from the said defendants and each of them the sum of Five Thousand Dollars ($5,000.00).'

Both the relator, James Sanders, and his co-defendant, Marie Randolph, joined in and filed one and the same motion to modify the judgment and one and the same motion for new trial, within 30 days after the entry of judgment. The respondent court overruled both motions.

Thereafter, the defendant, Marie Randolph perfected an appeal to the Appellate Court of Indiana from the said judgment of the respondent court. Relator and the plaintiff, Esther Sanders, as Administratrix of the Estate of Claude C. Sanders, deceased, were made appellees in the appeal. Relator did not appeal in his own behalf.

The Appellate Court rendered its opinion on October 23, 1959, in said cause, remanding the case back to the respondent court:

'* * * [W]ith instructions to modify the judgment by specifying which of the items of personal property the court finds to have been 'unlawfully sold and disposed of'; which items were found to lack 'proper care' and which items 'have been allowed to deteriorate and depreciate in value', and to further modify the decree by finding and decreeing the return of the property or the value thereof in case delivery cannot be had, and the amount the appellee should recover upon the basis of such modified findings, as herein instructed.' Randolph v. Sanders, Admx., etc. et al. (1959), 130 Ind.App. 41, 45, 161 N.E.2d 772, 774.

Upon remand, the respondent court did, on March 18, 1960, modify its judgment of December 17, 1955, in conformity with the mandate of the Appellate Court. The respondent court in its modified decree specified with particularity what items of property had been wrongfully taken by relator and his co-defendant, including what items had been allowed to deteriorate and depreciate in value, by lack of care while in the defendant's possession, so that in lieu of the return of said property, the plaintiff was adjudged to recover the sum of $2,850 from the defendants. In addition, the respondent court listed the property sold by the defendants and from which sale the proceeds were received by the defendants. Since such property could not be returned, the plaintiff was allowed the value of the property at the time of the taking which was in the sum of $1,750 in lieu of the return of such property. Further, the respondent court specified certain items of property which were disposed of in a manner other than by sale, and could not be returned to plaintiff. In lieu thereof, the plaintiff was given the sum of $400 which was the value of the property at the time of the taking. The sum total of the amount of judgment given plaintiff administratrix against relator and his co-defendant was $5,000.

A copy of the judgment as modified was ordered certified to the Appellate Court.

No new evidence was received by the respondent court nor was there a new submission or resubmission of the cause for trial prior to the compliance by said court with the mandate of the Appellate Court.

It does not appear that any of the parties to the appeal in the Appellate Court sought to question the compliance of the respondent court with the mandate of the Appellate Court. No motions to modify, supplement or enforce the mandate were filed with the Appellate Court after the judgment had been modified.

On April 2, 1960, the relator tendered his 'Motion for New Trial' for filing to the clerk of the respondent court. This offer was made within thirty (30) days after the respondent court had acted in modifying the judgment on March 18, 1960. Said court refused and declined to file the motion tendered for the reason that said motion was and is a nullity. The respondent court contended that it could take no further action in the cause than to comply with the mandate of the Appellate Court by modifying its 1955 judgment in the particulars ordered by said court.

It is the position of the respondent court that the modification entry of March 18, 1960, was simply a more specific statement of the same facts found and judgment rendered in 1955, for and against the same parties and in the same total amount.

As to the 1955 judgment, it should be noted that the Appellate Court did not reverse it nor did the Appellate Court order a new trial. The cause was only remanded back to the respondent court with instructions to modify the judgment by making it more specific in the particulars set out in the mandate.

The statute provides that when a judgment is reversed, in whole or in part, the cause shall be remanded with instructions for a new trial, 'when the justice of the case requires it; but if no new trial is required, with particular instructions relative to the judgment to be rendered and all modifications thereof * * *.' Acts 1881 (Spec.Sess.), ch. 38, § 649, p. 240, being § 2-3234, Burns' 1946 Replacement; Frankenstein v. Coil Constr. Co., Inc. et al. (1957), 127 Ind.App. 642, 143 N.E.2d 468, reh. den. 145 N.E.2d 19.

The Appellate Court in remanding the case back referred to the statute relating to judgments in actions for replevin. Said statute provides in part:

'In an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property, or the value thereof in case a delivery can not be had, and damages for the detention. * * *' [Emphasis added.] Acts 1881 (Spec.Sess.), ch. 38, § 444, p. 240, being § 2-2510, Burns' 1946 Replacement.

Under the statute, the plaintiff, first, is entitled to get the property of which he claims possession. However, if the property cannot be delivered to the plaintiff, then he is entitled to its value. But it is either one or the other.

In the present proceedings, the Appellate Court found that the original judgment was not in the alternative as contemplated by § 2-2510, Burns' 1946 Replacement, supra, The Appellate Court noted:

'* * * [T]hat the judgment, after ordering the return of the property and listing it, then recites that the defendants have unlawfully sold and disposed of many items, which leaves us to speculate as to what was sold and disposed of * * *; whether the defendants failed 'to take proper care of other items' * * * and whether other items * * * were allowed to 'deteriorate and suffer great depreciation of value'.' Randolph v. Sanders, Admx., etc. et al. (1959), 130 Ind.App. 41, 44, 161 N.E.2d 772, 774.

It is necessary to make such a determination according to the Appellate Court, in order to forestall the necessity of a later determination in case such property was attempted to be returned. In this regard, the Appellate Court stated:

'The judgment in the instant case is indefinite and does not so finally settle and adjudicate the controversy between the parties.' Randolph v. Sanders, Admx., etc., et al. (1959), 130 Ind.App. 41, 45, 161 N.E.2d 772, 774, supra.

The opinion of the Appellate Court considered and decided two questions:

(1) Whether there was error in overruling appellant's motion for new trial;

(2) Whether there was error in overruling appellant's motion to modify the judgment.

As to the first question, the Appellate Court held that it could 'perceive no substance' to the contention of...