26 Ind. App. 659 | Ind. Ct. App. | 1901
This cause was submitted for trial on March 14, 1895, the 7th day of the March term of the Marion Circuit Court. Special findings of facts with conclusions of law thereon were filed by the judge on May 9th (the 7th day of the May term). The appellant excepted to the conclusions of law. Nothing further was done until June 9th (the 4th day of the June term) when appellees made a written motion to the effect that the court make its special findings of fact more full, accurate, and complete. On June 29th the appellees by leave of court withdrew this motion,
It was formerly held by the Supreme Court in many cases that' special findings could not be changed after they had been returned and recorded. Hartlepp v. Whitely, etc., Co., 131 Ind. 543; Levy v. Chittenden, 120 Ind. 37; Wray v. Hill, 85 Ind. 546; Clark v. State, ex rel., 125 Ind. 1; Barner v. Bayless, 134 Ind. 600; Sharp v. Malia, 124 Ind. 407; Tarkington v. Purvis, 128 Ind. 182, 9 L. R. A. 607. Later cases hold that the special finding, during the term and before the rendition of the final judgment, may be properly corrected or amended to conform to the facts proved. Royse v. Bourne, 149 Ind. 187. The amendment may be made at any time before final judgment, and during tire period within which a motion for a new trial miay rightfully be filed. Jones v. Mayne, 154 Ind. 400. This must be taken as the limit within which such amendments can be made; to- hold otherwise- would not be fair to the litigants,
The right of the appellant to file his motion for a new trial is fixed by the statute, and not otherwise. It ended with the May term. §561 Horner 1897. The findings were wholly insufficient to sustain the judgment rendered except as they were reinforced as aforesaid. It is believed that the purposes of justice will be best subserved by remanding the cause for a new trial. Judgment reversed, with instructions to grant a new trial.