State v. Huebner, 28831

• Decision Date: 12 March 1952
• Docket Number: No. 28831,28831
• Citation: 104 N.E.2d 385,230 Ind. 461
• Parties: STATE v. HUEBNER.
• Court: Indiana Supreme Court

Page 385

104 N.E.2d 385

230 Ind. 461

STATE v. HUEBNER.

No. 28831.

Supreme Court of Indiana.

March 12, 1952.

J. Emmett McManamon, Atty. Gen., John Ready O'Connor, Deputy Atty. Gen., David P. Stanton, Pros. Atty., Gilbert Gruenberg, Special Deputy Pros. Atty., Gary, James J. Clark, Deputy Pros. Atty., Crown Point, for appellant.

Albert H. Gavit, Gary, for appellee.

GILKISON, Chief Justice.

Appellee, Huebner, was charged by indictment in the Criminal Court of Lake County with unlawfully, knowingly and with intent to defraud the City of Hammond, a municipal corporation of the state, procuring the signature of Honorable Joseph V. Stodola, Jr., Judge of Lake Superior Court, Room 1 to a certain agreed special findings of fact and conclusions of law in a certain cause No. 53787, entitled J. Martin Antrim Etc. v. City of Hammond, Indiana, then pending in said court, which writing it is alleged was false. The writing is copied in the indictment. It is lengthy, consuming sixteen printed pages in the State's brief. It is O.K.'d by appellee as attorney for plaintiff, and by H. H. Stilley as attorney for defendant city. It is dated November 25, 1946.

The indictment charges that the false pretenses and falsity of said writing consisted of the following:

'Said defendant falsely, knowingly and designedly prepared said form of special findings of fact and conclusions of law so that it falsely recited that said plaintiff in said cause, J. Martin Antrim, owned bonds and coupons, and series thereof, as more fully specified in the copy of said writing above set forth, which he did not own; that said false statement of ownership consisted of the fact that said plaintiff did not own bonds numbered 3 to 7 inclusive in series 7, nor did he own bonds numbered 3 to 7 inclusive in series 10, as stated in said writing, nor did he own the coupons stated in said writing as owned by him; that said defendant then and there well knew of the falsity of said writing in each of the aforesaid respects; and he then and there designedly prepared said writing in said false form for the purpose of it being used, and intending that it would be used, to deceive said Judge as hereinafter stated; that after preparing said false writing said defendant then and there took it before said Judge in open court in said cause and then an there falsely represented to said Judge that all the recitals and statements therein, including those false ones above described, were true, and said defendant then and there made to said Judge each of the aforesaid false representations of fact concerning the ownership of said bonds and coupons, well knowing the falsity thereof;

'That said defendant in his said capacity as such attorney in said cause made each of the aforesaid false representations and false pretenses to said Judge as representations of the existing facts relative to said cause, and said Judge then and there accepted and relied on each thereof as being the existing facts relative to said cause; that each of said representations were then and there material to the act then to be performed, and which was then performed by said Judge, of signing said written instrument; that said false representations were then and there made by said defendant to said Judge with the intent and for the purpose of deceiving said Judge and inducing him to sign said written instrument; that said Judge believed and relied on said false representations and was thereby deceived and induced to sign said written instrument, namely, said form of agreed special findings of fact and conclusions of law, and was also thereby induced to file and enter same in the records and upon the order book and judgment docket of said court as said court's special findings of fact and conclusions of law in said cause, which recited that said plaintiff was entitled to a money judgment against said City as more fully set forth in the above copy thereof; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

Without reciting all the proceedings and action taken in the case, we deem it sufficient to say that a motion to quash the indictment was duly filed which, omitting caption and signature, is as follows:

'Defendant, Carl A. Huebner, moves the court to quash the indictment against him in this cause on each of the following grounds, separately and severally:

'1. That the facts stated in the indictment or affidavit do not constitute a public offense.

'2. That the indictment contains matter which, if true, would constitute a legal justification of the offense, or a legal bar to the prosecution.

'3. That the indictment does not state the offense with sufficient certainty.

'Wherefore, for each of the foregoing reasons, separately and severally, he prays that the indictment in this cause be quashed.'

Thereafter a hearing on the motion was had before a special judge regularly selected to preside in the cause, and after arguments were heard, the matter was taken under advisement, and on June 16, 1951 the motion to quash was sustained and the indictment was adjudged quashed. From this judgment the appeal is taken by the state.

Error assigned is that the court erred in quashing the indictment.

The pertinent parts of the criminal statute upon which the indictment is based are as follows: 'Whoever, with intent to defraud another, designedly, by color of any false token or writing, or any false pretense, obtains the signature of any person or persons, firm or corporation to any written instrument, * * * shall, on conviction, be imprisoned in the state prison not less than one year no more than seven years, and fined not less than ten dollars [$10.00] nor more than one thousand dollars [$1,000], or, at the discretion of the court or jury trying the cause, shall, upon conviction thereof, be imprisoned in the county jail not more than six months nor less than ten days, and fined not more than fifty dollars [$50.00] nor less than ten dollars [$10.00].' § 10-2103 Burns' 1942 Replacement.

Passing without determining a number of objections to the record, and the brief of appellant, we direct our attention to the material questions attempted to be presented by the appeal.

(1). A question presented by the appeal is: Whether or not an agreed stipulation of facts and conclusions of law thereon in a civil lawsuit, O.K'd by the record attorneys for the parties plaintiff and defendant, can be a 'false token or writing' upon which a valid charge of obtaining the signature of the judge by false pretense may be based?

The effect of a finding and judgment bearing the written O.K. of a defendant's attorney was before this court in the recent case of McNelis v. Wheeler, 1947, 225 Ind. 148, 73 N.E.2d 339. After reviewing a number of authorities we held in substance that when a proposed finding and judgment is prepared by plaintiff, is O.K.'d by defendant's attorney and is handed to the judge for entry, the court has a right to regard it as correct and to have it entered.

When, as in the instant case, the parties plaintiffs and defendants stipulate the finding of facts and the conclusions of law and hand these stipulations to the judge in open court, bearing the approval of each of the parties, evidenced by the written O.K. of their attorneys of record, the court is not called upon to perform a judicial act. The writing is in fact a consent finding and judgment, and the duty of the court is ministerial--to have the writing entered as agreed upon. State ex rel. Harp v. Vanderburgh Circuit Court, 1949, 227 Ind. 353, 360, 85 N.E.2d 254, 11 A.L.R.2d 1108; McNelis v. Wheeler, 1947, 225 Ind. 148, 153, 73 N.E.2d 339 and authorities there cited, supra.

In the absence of fraud, parties who are competent to contract and not standing in confidential relations to each other may agree to the rendition of a judgment or decree respecting any right which may be the subject of litigation. When such a decree is entered it is a decree by consent. A consent decree is not a judicial determination of the rights of the parties. It does not purport to represent the judgment of the court, but merely records the agreement of the parties with respect to the matters in litigation. Such decree cannot be reviewed by appeal. Bergman v. Rhodes, 1929, 334 Ill. 137, 142, 165 N.E. 598. 65 A.L.R. 344, 349; Indianapolis, Decatur & Western Ry. Co. v. Sands, Trustees, 1892, 133 Ind. 433, 435 et seq., 32 N.E. 722; Hudson v. Allison, 1876, 54 Ind. 215, 216; Fletcher v. Holmes, 1865, 25 Ind. 458, 462; Adler v. Van Kirk Land & Construction Co., 1896, 114 Ala. 551, 561, 21 So. 490. 62 Am.St.Rep. 133, 138, 139; 2 Am.Jur. Appeal and Error § 31 p. 868. 49 C.J.S., Judgments, § 173, p. 308, 309.

That the judgment was rendered by consent of the parties does not detract from its dignity, or lessen its conclusiveness as an adjudication between the parties, but the consent is a waiver of error precluding a review upon appeal. Adler v. Van Kirk Land & Construction Co., 1896, 114 Ala. 551, 561, 21 So. 490, supra. Indianapolis, Decatur & Western Ry. Co. v. Sands, Trustees, 1892, 133 Ind. 433, 441, 32 N.E. 722, supra.

Since the written instrument in question was but an agreement on a stipulation of facts and conclusions of law that the parties plaintiff and defendant each for himself and itself understandingly entered into, by and through their respective attorneys at law, neither, except for fraud, can attack the action which they have caused the court to take. That there may have been errors in the agreed stipulation of facts or in the agreed conclusions of law cannot matter now for the parties had a right to make the stipulations as they desired. It was their lawsuit. 49 C.J.S., Judgments, § 173, p. 308 supra. The written instrument in question was not such a 'false token or writing' that to secure the signature of the judge thereon, could sustain a charge of false pretense.

(2)....