Tevis v. Hammersmith

• Decision Date: 06 June 1907
• Docket Number: No. 6,306.,6,306.
• Citation: 81 N.E. 614
• Parties: TEVIS v. HAMMERSMITH et al.
• Court: Indiana Appellate Court

81 N.E. 614

TEVIS

v.HAMMERSMITH et al.

No. 6,306.¹

Appellate Court of Indiana, Division No. 2.

June 6, 1907.

Appeal from Circuit Court, Washington County; Perry E. Bear, Special Judge.

Action by John Tevis against Louis Hammersmith and others. From a judgment for defendants, plaintiff appeals. Affirmed.

See 66 N. E. 912.

Helm, Bruce & Helm, Jos. H. Shea, and Mitchell & Mitchell, for appellant. Geo. H. Hester, for appellees.

ROBY, J.

This is the second appeal. 31 Ind. App. 281, 66 N. E. 79, 912. After the cause was remanded to the trial court, issues were formed by answers and replies, the contents of which are not essential to the decision of questions presented. Trial was had, and a general finding made in favor of, and judgment rendered for, the defendants. From this judgment the present appeal is taken; error being assigned upon the action of the court in overruling appellant's motion for a new trial. The evidence is in the record, and the grounds stated for a new trial question its sufficiency to sustain the finding.

Appellees Bush, Parker, and Gheens, at the commencement of the trial, requested the court to make a special finding of facts, and to state conclusions of law thereon. At the conclusion of the evidence (June 30, 1905), the judge announced that, when he reached a conclusion, he would notify counsel on one side to prepare a special finding of facts. During the first week in September, after the case had been argued by written briefs, he wrote to appellant's attorney at Louisville, Ky., to the effect that his conclusion would be for the defendants, that he had requested defendants' attorney to prepare special findings, and that he would be at Salem on September 27th to announce his decision. Appellees' attorney, upon receiving such request and notice, filed in the office of the clerk of the court, in vacation, on September 8th, a waiver of the request for the special findings, and asked leave to withdraw the same. On September 27th appellant's attorneys first learned of such action, and objected to the withdrawal of such request, and also requested the court upon behalf of their client to make special findings of fact. Oral evidence was heard at some length, establishing the foregoing facts. The court thereupon granted to said appellees leave to withdraw their request, and overruled appellant's request, and made a general finding as before stated; appellant reserving exceptions to each of such rulings.

It was the duty of the court, at the request of either party, “to first state the facts in writing, and then the conclusions of law upon them.” Section 560, Burns' Ann. St. 1901. In Hartlep v. Cole, 120 Ind. 247, 252, 22 N. E. 130 it was said that: “We think that it is due to the court that the request be made at the beginning of the trial, and necessary that substantial justice may be done. We are of the opinion that, if the request for a special finding is not made at the commencement of the trial, the right thereto is waived, and thereafter it becomes a question within the sound discretion of the court whether it will make a special finding or not.” Hamrick v. Barnett, 1 Ind. App. 1, 27 N. E. 106. It is also held that each party must make his own request, and that neither can object that the request of the other was not complied with. Bingham v. Stage, 123 Ind. 281, 23 N. E. 756. The court might discredit appellees' request, or have permitted such request to be withdrawn, without giving appellant the slightest cause for complaint; but, in view of the practice followed, the refusal to make a finding when requested to do so by appellant presents a very serious question. The statute before cited requires that the court shall “first state the facts in writing.” Such facts are necessarily to be found from the evidence, and the conclusions of law are to be drawn from them. Nothing can be clearer than that the conclusions of law are to be based upon the facts, and that the finding of facts is not to be made to accord with the conclusions of law previously determined upon. It is the duty of the court to state the facts in writing, and such duty cannot be delegated. It is eminently proper that the attorneys on either side should submit forms of finding, according with their respective views; but the finding when filed should be the finding of the court and in accord with the proof. Special findings are requested “with a view of excepting to the decision of the court upon the questions of law involved in the trial.” Section 560, Burns' Ann. St. 1901. When the court informed appellees' attorneys that the decision was to be in favor of their clients, he furnished reason to them for action which they subsequently took, and the reason because of which a making of special findings upon request, made after the trial had begun, was declared to be discretionary in Hartlep v. Cole, supra, did not exist, since appellees' request had presumptively placed the court in a situation to make such finding as clearly as if the same had been requested by appellant at the commencement of the trial; but, in the view we take of the case, the refusal to do so would not justify a reversal in any event.

The evidence shows, without any substantial conflict, that appellee Arlund was in 1898 granted a franchise by the city of New Albany, for the construction of a system of waterworks in said city, which also contracted with him for its supply of water. He thereupon procured the incorporation of the Home Crystal Water Company, on September 27, 1898; the purpose of such corporation being to construct and operate waterworks in said city, and its capital stock being fixed at $200,000. On September 29th of said year Arlund made a written proposition to said company offering to transfer said franchise and contract to it in consideration of $150,000 of said stock. This proposition was accepted by said corporation, as shown by its minutes. Pending negotiations with the city council, Mr. Arlund, who was a promoter, made a contract with appellant, Tevis, who was also a promoter, by which he gave to the latter a one-eighth interest in said enterprise and all profits arising therefrom, and Tevis did not interfere with the action of the city council, as he otherwise might have done. A $4,000 share in the enterprise was transferred to a member of the city council, and a number of stock certificates were issued to enable the company to be officered. Arlund was elected president, and by-laws were adopted, defining the duties of that officer as follows: “It shall be the duty of the president to preside at all regular and called meetings of the board of directors; to see that the bonds of the officers are properly executed; and he shall be the custodian of said bonds; and he shall have a general supervision of the affairs of said company.” A bond issue of $150,000 was authorized; the same to be secured by a mortgage upon the plant. None of these bonds were ever printed, none were ever sold, and none could be sold. The franchise and contract aforesaid were forfeited. The corporation never had any assets, except as herein stated. The last meeting of its directors was held January 4, 1899. Appellant brought this action in 1900, at which time the company had no offices, its directors were ignorant and indifferent regarding it, and it had ceased to be a matter of concern to any one. The directors “supposed that Arlund was carrying it on.” During the period of its activity the president exercised the power conferred by that portion of the by-laws quoted, and had entire control of its affairs. After the enterprise had proven a failure, and in contemplation of this suit, Tevis procured the assignment to him of other interests in said corporation, now holding the same in addition to the one-eighth interest secured by his contract with Arlund. This subsequent acquisition does not enter into his right to maintain this action or to recover therein, but would perhaps entitle him to a larger proportion of any assets which said corporation, by virtue of this suit, or otherwise, might acquire.

The Home Crystal Water Company seems to have been rescued from utter oblivion by the following facts: The following communication was received by Arlund on the date given: “Louisville, Ky., Oct. 10, 1898. Arlund & Company, Louisville, Ky.-Gentlemen: In compliance with your request for bids on cast iron pipe and specials for the Home Crystal Water Company of New Albany, Ind., we beg to submit the following prices: *** Shipments to begin within 60 days from acceptance of order. Yours truly, American Pipe & Foundry Co., by...