Wall v. Hutton

• Decision Date: 05 December 1930
• Docket Number: No. 14107.,14107.
• Citation: 92 Ind.App. 705,173 N.E. 600
• Parties: WALL et al. v. HUTTON et al.
• Court: Indiana Appellate Court

92 Ind.App. 705

173 N.E. 600

WALL et al.

v.HUTTON et al.

No. 14107.

Appellate Court of Indiana, in Banc.

Dec. 5, 1930.

Appeal from Superior Court, Porter County; Harry L. Crumpacker, Judge.

Action by William S. Hutton and others against Frank B. Wall and others. From an order of the court sustaining plaintiffs' motion to dismiss their case, the defendants appeal.

Reversed.

Bomberger, Peters & Morthland and Glenn D. Peters, all of Hammond, and Abe Ottenheimer, of East Chicago, for appellants.

W. J. Whinery, of Hammond, for appellees.

NICHOLS, J.

This is an appeal from the action of the court in sustaining appellees' motion to dismiss their case.

It appears by a special bill of exceptions, which is signed and properly made a part of the record, that on March 3, 1930, before the regular session of court for that day was convened, the judge of the court announced to the parties and their respective counsel that he had prepared his special findings of fact as requested by the parties, and suggested that counsel and himself retire to his chambers where the special findings of fact might be discussed by the parties concerned. Thereupon such counsel and the judge retired to the judge's chambers, and there they informally discussed the findings of fact; the same being made a part of the bill of exceptions. At the termination of the discussion, the judge delivered to each of counsel a copy of his special findings, and subsequently, after the formal convening of the court, made the following entry in the docket of the court: “3/3/30. Court files special findings of fact.”

[1] On March 5, 1930, appellees filed their motion to dismiss the case without prejudice, and the court stated, “Which motion is by the court sustained and the cause dismissed, and to which ruling of the court the defendants except.” We hold that this was an order of dismissal, which in effect was a final judgment.

Appellees have filed their motion to dismiss the appeal, contending that the ruling of the court sustaining appellees' motion to dismiss the case is not a final judgment from which an appeal will lie. But this court, in McGraw v. Nickey, 47 Ind. App. 159, 93 N. E. 1003, has held otherwise, and now so holds. The motion to dismiss is overruled.

[2] Appellees call attention to the fact that the special findings of fact are not signed by the court, and that no conclusions of law are stated, and then contend that the findings amount to a general finding. The statute does not provide that special findings must be signed by the court, but in Peoria Marine & Fire Ins. Co. v. Walser, 22 Ind. 78, it was held that as an evidence of its genuineness to an Appellate Court, it should be signed by the court or incorporated in a bill of exceptions signed by the court. See Winstandley v. Breyfogle, 148 Ind. 618,...