Thomas v. Farr, 20161

• Decision Date: 04 June 1965
• Docket Number: No. 20161,No. 2,20161,2
• Citation: 207 N.E.2d 650,137 Ind.App. 269
• Parties: P. C. THOMAS, Appellant, v. Peggy A. FARR, Appellee
• Court: Indiana Appellate Court

Page 650

207 N.E.2d 650

137 Ind.App. 269

P. C. THOMAS, Appellant, v. Peggy A. FARR, Appellee.

No. 20161.

Appellate Court of Indiana, Division No. 2.

June 4, 1965.

[137 INDAPP 270] Max Cohen, Gary, for appellant.

Sheldon H. Cohan, Cary, for appellee.

MOTE, Judge.

Appellant, P. C. Thomas, was adjudged by the Lake Juvenile Court to be the father of a male child born out of wedlock to appellee, Peggy A. Farr. The adjudication resulted from the filing by appellee in said court, and the subsequent hearing thereon, of a petition alleging appellant to be the father of a male child born on December 7, 1962. The issue was raised by said petition and appellant's answer in denial thereof. On August 7, 1963, the cause was submitted to the court for hearing and trial, and all evidence was concluded on this said day and both parties rested their case. The court continued the cause for findings and judgment to August 26, 1963.

After two more continuances at the request of the appellant, said party filed his Verified Petition to Take [137 INDAPP 271] Deposition of a material witness on the 14th day of October, 1963. On October 30, 1963, the court denied appellant's Motion to Take Deposition and entered its finding that appellant was the father of the said child, and continued the cause until November 6, 1963, for further findings and judgment. Again the case was continued at appellant's request until November 13, 1963, at which time appellant filed a Motion to Withdraw Submission which was denied, and the court entered its findings upon which judgment was rendered adjudging appellant to be the father of said male child, providing support money for the child, payment of appellee's attorney fees, and ordering appellant to give bond conditioned that appellant perform the judgment and orders therein.

On November 22, 1963, appellant filed his Motion for Rehearing as provided by Sec. 3-640, Burns' 1946 Replacement, and the motion was set for hearing on January 8, 1964, at which time the motion was submitted to the court for argument, and said motion was denied.

Appellant assigns as error the overruling of appellant's Motion for Rehearing which is as follows:

'MOTION FOR RE-HEARING

'Comes now the defendant and moves the court for a re-hearing and in support of said motion alleges and says:

'1. The decision of the court is contrary to law.

'2. The decision of the court is not sustained by sufficient evidence.

'3. For errors of law occurring at the trial in this, to-wit:

'a. The court erred in denying defendant's petition to take deposition.

'b. The court erred in denying defendant's motion to withdraw submission in that the submission of this cause for trial to the court was had on August 7, 1963; that the court made no finding or judgment until November 13, [137 INDAPP 272] 1963, more than 90 days after the submission; that the purported finding of the court on October 30, 1963, in which the court purported to find that the defendant was the father of a child born out of wedlock, was a nullity in that no order book entry had ever been made or signed by the judge of this court reflecting said purported finding; that as of the filing of this motion no order book entry has been made or signed by the judge of this court reflecting the purported finding of the court on October 30, 1963.

'WHEREFORE, defendant prays that he be granted a rehearing and for all other just and proper relief.'

Appellant groups the above specifications of error Numbers 1 and 3a for purposes of argument, and also relies on Specification of Error 3b as error committed by the trial court.

By waiving Specification of Error Number 2, the appellant admits, both in his brief and in oral argument, that the record contains sufficient evidence of probative value on which the trial court could have based its finding and judgment.

Appellant primarily bases his appeal on the alleged error of the trial court in denying his Petition to Take Deposition of a material witness. The essential parts of this petition recite that a material witness, A. B. Bland (also referred to in the record as A. B. Blaine), who at the time was residing in Vicksburg, Mississippi, would give evidence at a deposition that from December 1961 through April 1962, said A. B. Bland had sexual intercourse with the appellee.

The appellant asserts that the uncontradicted evidence shows the following facts: that appellee knew A. B. Bland; that in the middle of December of 1961 both of appellant's legs were broken at his place of employment, requiring his hospitalization for fifty-[137 INDAPP 273] seven (57) days prior to his discharge on February 10, 1962; that he required a walker to move about until March 10, 1962; and that he used crutches for a month after that.

According to the testimony of appellee the child was conceived around the last of February or the first of March of 1962. It is appellant's contention, based on the prior testimony, that the court erred in not permitting additional evidence having a bearing upon whether others than the appellant may have had sexual relations with appellee during the period in which conception could have taken place. Relying solely on the case of Opp v. Davis (1961), 133 Ind.App. 365, 179 N.E.2d 298, (rehearing denied), 180 N.E.2d 788, appellant maintains that he was denied sufficient opportunity to exhaust the use of all suggested avenues affecting his alleged parental status in order to assure as great a degree of certainty as possible in determining the parentage of the male child involved.

[1, 2] It is a well established principle of law that the decision as to whether or not leave to take a deposition should be granted is within the sound discretion of the court trying the cause, and if such discretion is abused it can be reviewed on appeal. See State ex rel. Rooney et al. v. Lake C. C., etc. (1956), 236 Ind. 345, 140 N.E.2d 217.

In considering the facts in this case as set forth, and bearing in mind the holding and purpose of Opp v. Davis, supra, we come to the inescapable conclusion that no such abuse has occurred.

Although we agree fully with the decision and reasoning found in the Opp case, supra, as applied to the circumstances contained therein, we are of the opinion that the case at bar is readily distinguishable.

In the case of Opp v. Davis, supra, at the conclusion of the direct and cross-examination of appellant, and [137 INDAPP 274] before appellant rested, the court granted appellant's request for additional time in which to locate additional witnesses. A subsequent request for continuance was again granted by the court by reason of lack of service of subpoena on the additional witnesses for the defense. On October 20, 1960, appellant made a showing of said service on five (5) named male persons. Three (3) of these five (5) appeared and testified that they had no sexual intercourse with appellee. The court then refused to permit appellant to examine said witnesses as to prior contrary statements to their present testimony, and refused the use of leading questions to the 'obvious surprise and hostile' witnesses. The appellant then rested his case with no request for continuance to produce the missing witnesses after stating to the court, 'that is all the witnesses we have unless ...