Wall v. City of Muncie

• Decision Date: 02 February 1927
• Docket Number: No. 12390.,12390.
• Parties: WALL v. CITY OF MUNCIE et al.
• Court: Indiana Appellate Court

155 N.E. 55

WALL

v.CITY OF MUNCIE et al.^*

No. 12390.

Appellate Court of Indiana, In Banc.

Feb. 2, 1927.

Appeal from Delaware Circuit Court; Alonzo Bales, Special Judge.

Suit by Harold C. R. Wall against the city of Muncie and others to cancel an assessment against plaintiff's property and for other relief. Judgment enjoining the collection of the assessment until certain acts should be performed. Plaintiff's motion to modify the judgment was overruled, and he appeals. Affirmed.McClellan, Hensel & Guthrie, of Muncie, for appellant.

Orr & Clark, of Muncie, A. M. Henderson, and George H. Koons, Jr., of Muncie, for appellees.

McMAHAN, C. J.

Suit by appellant to set aside the acceptance by the board of public works of appellee city of a general sewer which had been constructed under contract with appellee Harris-Andrews-Henderson Company at a cost of $365,000, to set aside and cancel the assessment against appellant's property, to enjoin the collection of, and to quiet appellant's title against, such assessment. The facts were found specially. The special finding was made June 6, 1924, and the court, on the same day, stated its conclusions of law, to each of which appellant accepted. Appellant, on the same day, filed a motion to modify the conclusions of law, and within 30 days thereafter all of the appellees filed their motions for a new trial. On February 12, 1925, the court overruled the motion to modify the conclusions of law, but on its own motion withdrew the conclusions of law so stated and filed June 6, and then restated its conclusions as follows: (1) That the law was with the plaintiff (appellant); (2) that the defendants (appellees) should be enjoined from enforcing or attempting to collect the assessment in question until the earth under and around the sewer should in certain designated parts of the line of the sewer be carefully and solidly tamped, and until the contractor filed a proper maintenance bond in the sum provided for in the contract; (3) that appellant was entitled to recover costs. Appellant and each of the appellees separately excepted to each conclusion of law so stated, and appellant filed a motion to modify the conclusions of law as last stated. This motion was overruled as were the several motions for a new trial, and on the same day, February 12, 1925, judgment was rendered in accordance with the conclusions of law that day filed. A motion on the part of appellant to modify the judgment was overruled; hence this appeal.

[1][2][3][4] Appellant contends the court, after the end of the term of court at which the first conclusions of law were stated, had no power or authority at a subsequent term to withdraw such conclusions of law and to restate its conclusions of law. This contention is untenable. Appellant has never challenged the correctness of the special finding of facts. He did at the proper time challenge the correctness of the conclusions of law as first stated. He also filed a motion asking the court to restate these conclusions. No action was taken on this motion until February 12, 1925, when it was overruled and when the court, on its own motion, withdrew the conclusions of law to which appellant had excepted, and which he had asked the court to modify, and restated and filed new conclusions of law. No judgment had been rendered on the conclusions. While a motion to modify conclusions of law does not raise any question as to their correctness, it may be inferred that in the consideration of such motion the court's attention was called to matters which induced it to conclude an error had been theretofore made, and that the conclusions of law for some reason were not what they should have been, and that they should be withdrawn and other conclusions be stated and filed. The action of the court in withdrawing the first conclusions of law and restating them was in effect nothing more than sustaining appellant's motion to modify, although the change and modification may not have been in harmony with the request contained in the motion to modify. The court not only had the right to withdraw the first conclusions of law at the time they were withdrawn, but if an error in such conclusions had been discovered it was...