154 Ind. App. 449 | Ind. Ct. App. | 1972
After trial without jury the court awarded to plaintiffs (Whipple) the demand of their complaint which alleged defendant (Atkinson) was indebted to them “for work in the nature of accounting services performed . . . for said defendant at said defendant’s special instance and request, at various times and days between June 1, 1969 and August 27, 1969
Here we have a vintage pleading, a “common count” (or an adaption thereof), an invention of the era of issue pleading which has survived the fact pleading era and is still in vogue at the dawn of notice pleading.
In earlier stages of the trial the court permitted the defendant to attempt to expand the issues beyond the temporal boundaries fixed by the dates alleged in the complaint. When he eventually held that the value of services rendered prior to June 1,1969, was not relevant (i.e., when he excluded the opinion testimony) his reason could have been that he was convinced by the weight of all the evidence then before him that the services rendered after June 1, 1969, were rendered pursuant to a new request made
The trial here involved was to the court without the intervention of a jury. The distinction between questions of fact and questions of law therefore lacks the significance it might have had if the trial had been to a jury. We express no opinion concerning questions which could arise out of the right to trial by jury. We suggest, however, that this may be but one of the areas in which full utilization of pre-trial procedures may yield pitfall-avoiding-benefits to which the glare of the apparent time consuming features of pre-trial may have blinded us.
Judgment affirmed.
Buchanan, P.J., and Sullivan, J., concur.
Note. — Reported at 290 N.E.2d 131.
. Our emphasis.
. 1 Work, PRACTICE AND FORMS (Watson’s Rev., 1918), §411, p. 292; 2 Gavit, INDIANA PLEADING AND PRACTICE (1942), § 234, p. 1645.
. Wyler v. Lilly Varnish Co. (1969), 146 Ind. App. 91, 101, 252 N. E. 2d 824, 831, 19 Ind. Dec. 510, 519; Indianapolis Transit System, Inc. v. Williams (1971), 148 Ind. App. 649, 269 N. E. 2d 543, 550, 25 Ind. Dec. 482, 490.
. Fleetwood v. Denny (1969), 145 Ind. App. 404, 407, 251 N. E. 2d 454, 456, 18 Ind. Dec. 690, 693.