State v. Bridges

Citation64 N.E.2d 411,116 Ind.App. 483
Decision Date18 January 1946
Docket Number17381.
PartiesSTATE v. BRIDGES et al.
CourtIndiana Appellate Court

Appeal from Putnam Circuit Court; John H. Allee, Judge.

James A. Emmert, Atty. Gen., Cleon H. Foust 1st Deputy Atty. Gen., and Thomas L. Webber, Deputy Atty Gen., for appellant.

Hughes & Hughes, of Greencastle, and L. Russell Newgent, of Indianapolis, for appellees.

BOWEN Judge.

This is an action brought by appellant against appellees for specific performance of an alleged oral agreement for the conveyance of certain real estate in Putnam County, Indiana. The complaint was in two paragraphs, alleging in substance that the appellees had made an agreement to convey to the appellant a certain farm known as the Bridges 'farm,' consisting of approximately 390 acres; that all of the conditions of the agreement on its part to be performed had been performed by the appellant; that a certain 23-acre tract of real estate was a part of the real estate included within said agreement; and that appellant had demanded a deed for said 23-acre tract but that defendants refused to convey it to appellant. The two paragraphs of complaint were essentially the same, except that in the first paragraph the appellant alleged that it had taken possession of the real estate in question with appellees knowledge and consent, and that appellant had made valuable and lasting improvements on this real estate.

The complaint was met by separate answers of special denial by appellees, in which appellees deny that they ever agreed to sell this 23-acre tract of real estate to appellant.

Before the beginning of the trial of said cause the appellant filed its written request for the court to make a special finding of facts and conclusions of law.

The cause was submitted for trial and the evidence concluded on June 13, 1944. Closing arguments in said cause were had on July 15, 1944, during term time. On August 11, 1944, and while the court was in vacation, the court made and filed its special finding of facts and conclusions of law, which conclusions of law were that the law is with the appellees and that appellees are entitled to recover their costs against the appellant. On August 14, 1944, appellant filed its motion for a new trial. On September 16, 1944, appellant filed its written dismissal of said cause, and also its verified motion for the court to vacate its special finding of facts and conclusions of law, to vacate the filing of plaintiff's motion for a new trial, and to enter judgment of dismissal of said cause. On October 5, 1944, appellees filed their written objections to the dismissal of said cause, and also their answer to appellant's motion for the court to vacate its special finding of facts and conclusions of law. The court overruled appellant's motion for the court to vacate its special finding of facts and conclusions of law, and to vacate the appellant's motion for a new trial; and overruled plaintiff's motion to enter judgment of dismissal of said cause. The appellant then filed a motion for a venire denovo. On January 24, 1945, the court overruled appellant's motion for a venire be novo, and entered judgment for the appellees upon the special finding of facts and conclusions of law; and overruled appellant's motion for a new trial filed August 14, 1944. On January 24, 1945, the appellant filed a motion for a new trial which was overruled by the court.

There are errors assigned which question the action of the court in overruling appellant's motion for the court to vacate its special finding of facts and conclusions of law filed during vacation; in overruling appellant's motion for the court to vacate the plaintiff's motion for a new trial of August 14, 1944; in denying appellant's dismissal of said cause; in overruling appellant's motion for a venire de novo; in entering judgment upon its special finding of facts and conclusions of law; and in overruling appellant's motion for a new trial.

One of the questions before us is whether or not the court erred in denying appellant's dismissal of this cause, and in overruling appellant's motion for judgment of dismissal of this cause after the judge had made his finding of facts and conclusions of law. The record shows that the court was in vacation when the finding of facts and conclusions of law was shown filed and attested by the clerk of the court. Sec. 2-901, Burns' 1933, so far as we need quote it, reads as follows: 'An action may be dismissed without prejudice--First. By the plaintiff, before the jury retires; or, when the trial is by the court, at any time before the finding of the court is announced.' (Our italics.) The appellant contends that the court's action, in filing its special finding of facts and conclusions of law while the court was in vacation, was void. The appellees contend that the court's action, in filing its special finding of facts and conclusions of law in vacation, was proper and provided for by the provisions of Sec. 2-2102, Burns' 1933, and that this action of the court cut off appellant's right to dismiss the action. The last quoted section, insofar as it is pertinent to this appeal, provides: 'And whenever any issue of law or fact is submitted to the court for trial, and the judge shall take the same under advisement, the judge shall not, except in case of severe illness of himself or family, hold the same under advisement for more than sixty (60) days; and, if the court wherein said issues arose be not then in session, he shall file his determination therein, in writing, with the papers in the case.' This statute also provides for the disqualification of the judge, upon application of any party, if the judge fails to determine any issue of law or fact taken under advisement within ninety (90) days after taking the same under advisement.

The first question we have to consider is the effect of the filing by the judge of his finding of facts and conclusions of law in vacation, and whether such filing constituted an announcement of such finding and conclusions which would cut off appellant's right to dismiss the action.

Courts, in construing the dismissal statute quoted, supra, have held to a strict definition of an announcement which will eliminate a right of dismissal under the statute. An oral announcement of what the finding will be, or the announcement of a general finding which was afterwards withdrawn and a special finding filed, have been held to be situations which do not constitute an announcement of the finding which would take away the right of dismissal. Crafton et al. v. Mitchell et al., 1893, 134 Ind. 320, 33 N.E. 1032; Mitchell v. Friedley et al., 1891, 126 Ind. 545, 26 N.E. 391.

Section 2-2102, Burns' 1933, which makes provision for the filing of special finding of facts and conclusions of law, provides that such action shall be by the court. The further provisions of this same statute, that the judge shall not 'hold the same under advisement for more than sixty (60) days; and, if the court wherein said issues arose be not then in session, he shall file his determination therein, in writing, with the papers in the case * * *' (our italics), when fairly considered, do not contain such words as would indicate the legislative intention that such action by the judge would constitute the final determination by the court of such issues. This statute has been held to be remedial and directory in nature. Jones v. Swift et al., Executors, 1884, 94 Ind. 516; Smith v. Uhler, 1884, 99 Ind. 140.

In the case of Isaacs, Trustee v. Fletcher Am. Nat. Bk., 1934, 98 Ind.App. 111, 185 N.E. 154, 157, decided by this court after the passage of the above act, the question was considered as to the effect of the lower court's entry of a...

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