Whitcomb v. Stringer

Decision Date17 February 1903
Citation66 N.E. 443,160 Ind. 82
CourtIndiana Supreme Court


Appeal from superior court, Marion county; Vinson Carter, Judge.

Petition by Theodore C. Whitcomb against William H. Stringer, as receiver of the Eureka Savings & Loan Association. From a judgment in favor of defendant, plaintiff appealed to the Appellate Court, from which the case was appealed under Burns' Rev. St. 1901, § 1337j, cl. 3. Affirmed.

Wm. A. Ketcham and Frederick W. Cady, for appellant.


Appellee having been previously appointed receiver of the Eureka Savings & Loan Association, appellant filed in the receivership an intervening petition for the recovery as a creditor for sums of money loaned the association, and as a stockholder to recover the withdrawal value of stock owned by him. Appellee answered the intervening petition by a general denial. On the 3d day of February, 1900, the case was called for trial before the court upon issues joined by the general denial, and before any evidence was heard it was agreed in open court, and made a part of the record, that all matters of set-off and counterclaim might be given in evidence as a defense under the general denial. The trial then proceeded and continued from day to day, including certain adjournments, until the 8th day of March, 1900, at about the hour of 9:30 o'clock a. m., at which time the evidence in the cause was concluded. Whereupon the court of its own motion announced that in view of the evidence that had been produced he deemed it a duty and did therefore direct the receiver to file an answer of set-off or counterclaim based upon the statement of items in his report asking a judgment over against the appellant, and to enable the latter to procure any further testimony, and to prepare and present his defense to said answer of set-off and counterclaim, the further hearing was postponed until the 26th day of March, 1900, at 9:00 o'clock a. m. The cause being postponed, the parties and their attorneys retired from the courtroom at about 10:00 o'clock a. m. One hour and a half later, or at about 11:30 a. m. of said 8th day of March, appellant's attorney returned to the courtroom. Prior to his return the court had concluded its business for the morning session, and the judge had left the bench, and retired to his private room adjoining the courtroom, and was there engaged at work in chambers. Appellant's attorneys entered said private room, and, addressing the judge, informed him that he desired to file in court a written dismissal of the intervening petition, and that the paper which he (the attorney) held in his hand was such written dismissal; whereupon the judge requested the attorney to call up the attorneys for the receiver, and request them to come to the courtroom, and indicate whether or not they had any objection to the proposed dismissal. Having done as requested, appellant's attorney informed the judge that he had talked with one of the receiver's counsel, who expressed the desire to confer with his partner before answering as to the proposed dismissal, and stating that he would have such conference and appear in the courtroom at 2 o'clock p. m. Upon this information the judge directed said attorney to be at the courtroom at 2 o'clock, when the matter would be taken up. Thereafter, and between the hours of 12 o'clock noon and 2 o'clock p. m., the attorneys for the receiver filed with the deputy clerk an answer of set-off and counterclaim, requesting a judgment over against appellant. When this answer was filed with the deputy clerk the court was not in session; neither was the judge nor appellant, nor any one representing him, present; neither had appellant nor his attorney received notice that such answer would be filed on that day. A few minutes before 2 o'clock the attorneys of both parties assembled in the courtroom, and, while awaiting the arrival of the judge, appellant's attorney exhibited the prepared dismissal to the attorneys for the receiver, and immediately upon the resumption of the bench by the judge an attorney for the receiver, addressing the court, announced that they had filed with the clerk the answer of set-off and counterclaim as directed, and asked leave to file the same in court; whereupon appellant promptly objected to the filing of such answer, upon the ground that he had dismissed his intervening petition at the morning session of the court, of which both court and counsel for the receiver had actual notice. The court overruled appellant's objection, permitted the answer to be filed, noted the filing thereof in the issue docket, and immediately thereafter entered in said docket appellant's motion to dismiss, an order of dismissal of appellant's intervening petition, and then an order requiring appellant to reply to the answer by 9 o'clock, March 26th. April 18th appellant filed a reply. April 25th he offered to file a motion and affidavit for a change of venue from the judge, and, this being refused on the ground that the motion came too late, he thereupon offered to file his written request for a trial by jury, which was also refused upon the same grounds. Trial resumed, additional evidence given, and a finding in favor of the receiver for $12,092. Motion for a new trial and in arrest of judgment overruled. Pending the motion for a new trial, and in consideration thereof, the receiver, upon suggestion of the court, remitted from the amount of the finding $2,453; whereupon the court overruled the motion for a new trial, and rendered judgment against appellant for $9,639, the residue. Exceptions were properly reserved upon all adverse rulings.

The propositions of alleged error are, first, in refusing to permit appellant to dismiss his intervening petition before permitting appellee to file his set-off and counterclaim; second, in permitting appellee to file his set-off and counterclaim after appellant had presented to the court a written dismissal of his intervening petition, and given notice to the court and counsel for appellee of his intention and desire to dismiss; third, in refusing appellant a trial by jury; fourth, in refusing appellant a change of venue from the judge; fifth, in overruling the motion for a new trial; sixth, in suggesting and permitting a remittitur of $2,450; and, seventh, in overruling the motion in arrest of judgment.

The facts involved in the first two of the above propositions may be more concretely stated thus: The trial of the case having progressed to the conclusion of the evidence under an issue and agreement that permitted the giving in evidence by appellee, as a defense, of all proper matters of set-off, but would not support a judgment over against appellant, the court, of its own motion, arrested the progress of the trial, and ordered its receiver (appellee) to file an additional pleading in set-off, demanding therein a judgment against appellant. An hour and a half later, and after the court had finished its business for the forenoon session, and the judge had left the bench and retired from the courtroom, appellant gave notice to the judge and attorneys for appellee that he had prepared and desired to file a written dismissal of his intervening petition; and, with the knowledge and approval of the judge, the attorneys agreed to meet in the courtroom at 2 o'clock and take the matter up. They did meet pursuant to the agreement, and after the judge had taken the bench appellee's attorney, addressing the court, asked leave to file the answer of set-off he had been directed to file. After the filing of the answer asking affirmative relief against appellant, the latter presented to the court his motion to dismiss, which was sustained, and his intervening petition dismissed. Thereafter he was ruled by the court to reply to appellees' answer of set-off.

Under the Code a plaintiff may dismiss his action without prejudice at any time before the jury retires, or, when the trial...

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