Whinery v. Kozacik

• Decision Date: 23 November 1937
• Docket Number: 15674.
• Citation: 11 N.E.2d 86,104 Ind.App. 349
• Parties: WHINERY v. KOZACIK.
• Court: Indiana Appellate Court

11 N.E.2d 86

104 Ind.App. 349

WHINERY v. KOZACIK.

No. 15674.

Appellate Court of Indiana, in Banc.

November 23, 1937

Belshaw Huebner & Belshaw, of Hammond, for appellant.

Crumpacker & Friedrich and Jay E. Darlington, all of Hammond, for appellee.

DUDINE Judge.

This action was instituted by William J. Whinery against appellee Michael E. Kozacik, to recover for professional services allegedly rendered. William J. Whinery died before the cause was submitted for trial, and therefore appellant was substituted as plaintiff.

The issues were formed by an amended complaint filed by appellant, and an answer of general denial filed by appellee. The cause was submitted to the court for trial without a jury, and the court found for appellant that she should recover $843.27 from appellee.

In due time appellee Kozacik filed a motion for new trial. Thereafter he filed a pleading entitled "Affidavit Supporting Motion for a New Trial," in which it was averred, among other things, that after said motion for new trial was filed the Porter county courthouse, wherein the records of the trial court were housed, was partially destroyed by fire, including the court reporter's office and records therein; that at the trial of the case the testimony and proceedings were taken down in shorthand by the official reporter; that said reporter's notes were completely destroyed in said fire; and that as to the great bulk of said testimony there is no means of determining what it was except the recollection of the court and counsel.

In the "affidavit" affiant prayed that a new trial be granted. It was thereafter stipulated by the parties that said "affidavit" be considered as a complaint for a new trial for causes discovered after term. Appellant filed an answer in general denial. The issues formed by said pleadings were submitted to the court for "hearing and determination." The "determination" of said issues by the court as shown by the record is as follows "Come now the parties hereto, by counsel, and the court now grants and sustains defendant's motion hereinbefore filed for a new trial of this cause on the grounds set forth in defendant's affidavit in support of his motion for a new trial of this cause * * * and the court in granting said motion for a new trial of this cause does so for the reason that the record of the oral testimony given at the trial of this cause has been destroyed by fire and that by reason of the destruction of said record the court cannot settle upon a bill of exceptions, and the defendant would...