Wabash Ry. Co. v. City of Gary

• Decision Date: 18 November 1921
• Docket Number: No. 23713.,23713.
• Citation: 191 Ind. 394,132 N.E. 737
• Parties: WABASH RY. CO. v. CITY OF GARY.
• Court: Indiana Supreme Court

191 Ind. 394

132 N.E. 737

WABASH RY. CO.

v.CITY OF GARY.

No. 23713.

Supreme Court of Indiana.

Nov. 18, 1921.

Appeal from Superior Court, Lake County; Charles E. Greenwald, Judge.

Condemnation proceedings by the City of Gary to condemn land for a street. From assessment of damages by the Board of Public Works of the City of Gary, the Wabash Railway appealed to the superior court, which gave a judgment for the railroad, which was vacated on motion of plaintiff, and the railroad appeals. Affirmed.

Wildermuth & Force, of Gary, for appellant.

Davis & Starr, of Gary, for appellee.

EWBANK, J.

The board of public works of the city of Gary adopted resolutions for opening a street across appellant's railroad tracks and lands, and fixing the benefits at $1 and the damages at $1, and thereafter overruled a remonstrance filed by the appellant, and confirmed the award of benefits and damages. Appellant appealed to the superior court, where a trial was had, without a jury, in June, 1917. The record does not disclose that anything more was done in the matter until March 20, 1918, at the March term of court, when the court announced a finding that the appellant was entitled to damages in the sum of $2,070 and its costs as against the appellee and was chargeable with benefits in the sum of $1, and judgment was entered accordingly. Six days later, at the same term of court, the record recites that the defendant abandoned the condemnation proceedings and paid the costs, and that “the judgment heretofore entered herein on March 20, 1918, is now vacated.” Thirty-nine days thereafter, but still at the same term of court at which the finding was made and the judgment entered, the court ordered-

“That said order entered in this cause on March 26, 1918, *** is hereby stricken out, and there is hereby ordered in lieu thereof, as of said date, nunc pro tunc, the following order: Comes now the defendant and files motion and petition to discontinue the proceedings herein and vacate the judgment heretofore entered, to which the plaintiff objects.”

The motion and petition referred to are not set out in the transcript, as having been filed on either of these dates, but such a motion is copied into the record, under date of September 15, 1919. On that date, more than a year and a half after the motion to vacate the first judgment was originally filed, a recordentry was made, reciting that appellant filed a motion to strike out the motion of appellee, and also a demurrer to said motion, and that both its motion and its demurrer were overruled, to each of which rulings appellant excepted. Seven weeks later, also at the September, 1919, term of court, the court ordered that said entry of September 15, 1919, be “stricken out, vacated and held for naught,” and that the motion to strike out and the demurrer to defendant's motion to discontinue the proceedings were both overruled, to each of which rulings the plaintiff (appellant) excepted, and thereupon the court sustained defendant's (appellee's) motion to vacate the judgment entered on March 20, 1918, and entered a judgment that it be vacated and set aside, and that the condemnation proceeding be discontinued, and the costs taxed against appellee. From this last judgment the appellant perfected a term appeal.

[1] The record discloses that soon after the action was begun “G. Windholm” appeared as attorney for the appellee city, and that as such attorney he signed the motion and demurrer which were filed to the complaint before the cause was submitted for trial in June, 1917. We have judicial knowledge that a municipal election was held in the city of Gary the following November. Burns' 1914, § 8644; Acts 1913, c. 344, p. 933, since amended; Acts 1921, c. 161, p. 404. The motion to vacate the judgment and to discontinue the condemnation proceeding as set out in the transcript is signed as attorneys on behalf of the city of Gary by “Davis & Starr,” whose names are signed to appellee's brief in this court, and by “John N. Fox.” The brief for appellee asserts that at the trial the appellee city was represented by an attorney appointed under a previous city administration, and that the attorneys who represented appellee in March, 1918, had nothing to do with the cause until they discovered that judgment had already been entered, and that thereupon they filed the motion to vacate the judgment only five days after it was entered and at the same term of court. The appellant has not challenged nor denied any of these statements of counsel for the appellee.

[2] If the trial court had inadvertently entered a finding and judgment, when counsel for the appellee were not present, which did not fully protect the appellee's interests, it had full authority to set the judgment aside before the expiration of the term of court at which it was rendered, either upon motion of appellee, or on the court's own motion. Burnside v. Ennis, 43 Ind. 411;McClellan v. Binkley, 78 Ind. 503, 504;Gingrich v. Gingrich, 146 Ind. 227, 45 N. E. 101;Vesey v. Day, 175 Ind. 406, 411, 94 N. E. 481...