Dawson v. Wright, Mayor, Etc.Dawson v. Wright, Mayor, Etc.
- Reporters:
- , ,
- Before:
- Emmert
This is an appeal from a judgment dismissing a cause of action by complaint, which was designated an “APPEAL FROM DECISION OF THE PUBLIC SERVICE COMMISSION OF INDIANA ON RATES ESTABLISHED AND BOND ISSUE FOR THE CITY OF ANDERSON, INDIANA, AND FOR APPOINTMENT OF RECEIVER.” The prayer of thе
It is not necessary to state all the various procedural steps that were taken in the matter, but it is sufficient to note that an answer was filed in behalf of certain of the officers of the City of Anderson who were made parties, and three members of the Public Service Commission of Indiana also filed an answer.
The Honorable Cleon Wade Mount, Judge of the Tipton Circuit Court, was appointed special Judge, and the cause wаs submitted to the court for trial and evidence was heard. The court’s intrinsic record does not show that the hearing of evidence was concluded, but it does show Judge Mount died prior to March 8, 1954, before any special finding and conclusiоns of law were made as requested by appellants.
Subsequently the Honorable Robert T. Caine, Judge of the Grand Circuit Cоurt, was selected as special judge and he assumed jurisdiction in the cause. Thereafter three members of the Publiс Service Commission of Indiana filed a separate motion to dismiss the cause, and the Mayor of Anderson, the membеrs of the Common Council of the City of Anderson, and the members of the Board of Works of the City of Anderson also filed a motiоn to dismiss the cause. Both motions in sub
“And the Court having heard argument of counsel and being duly аdvised now sustains each of the respective motions of the defendants.
“IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED THAT this cause of action be and the samе is hereby dismissed, that the plaintiffs take nothing by this action and that the defendants recover of the plaintiffs their costs and сharges laid out and expended.”
On August 5, 1954, appellants filed what was designated as a motion for reconsideration оf ruling made on July 6, 1954, and on the same date appellants also filed motion for new trial. On October 15, 1954, the court overrulеd the appellants’ motion for reconsideration, and appellants’ motion for new trial.
On January 13, 1955, appellants filed petition for an extension of time to file transcript and assignment of errors, in substance alleging the appeal should be perfected on or before the 14th day of January, 1955, unless the time be extended, and praying time be еxtended, to and including the 14th day of April, 1955. This court granted the extension of time to and including April 14, 1955, to file transcript and assignment of errors.
Appellees have filed a motion to dismiss this appeal, and the determination of this issue makes it unnecessary to determine any other issue asserted in appellants’ original brief.
“A party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence, аnd where a case is tried by the judge, and the issues remain undetermined at the death, resignation or expiration of the tеrm of such judge, his successor cannot decide, nor make findings in, the case, without a trial de novo. Bahnsen v. Gilbert (1893), 55 Minn. 334, 56 N. W. 1117; Clanton v. Ryan (1890), 14 Colo. 419, 24 Pac. 258; In re Sullivan (1904), 143 Cal. 462, 77 Pac. 153; Conolly v. Ashworth (1893), 98 Cal. 205, 33 Pac. 60; Mace v. O’Reilly (1886), 70 Cal. 231, 11 Pac. 721; Norvell v. Deval (1872), 50 Mo. 272, 11 Am. Rep. 413; Weyman v. National Broadway Bank (1880), 59 How. Prac. 331; Putnam v. Crombie (1861), 34 Barb. 232; Cain v. Libby (1884), 32 Minn. 491, 21 N. W. 739; Ells v. Rector (1875), 32 Mich. 379; 23 Cyc. 565.” Wainwright v. P. H. & F. M. Roots Co. (1912), 176 Ind. 682, 698, 699, 97 N. E. 8. See also State ex rel. Harp v. Vanderburgh Circuit Court (1949), 227 Ind. 353, 363, 85 N. E. 2d 254.
“A judgment of dismissal is a final judgment from which an appeal may be taken.” 2 Gavit, Indiana Pl. & Pr., p. 2081, §333. Wall v. Hutton (1930), 92 Ind. App. 705, 173 N. E. 600; Straus Bros. Co. v. Fisher (1928), 200 Ind. 307, 311, 163 N. E. 225; Koons v. Williamson (1883), 90 Ind. 599.
Since there had been no trial, the motion for new trial presents nothing for review.
Metsker
v.
Whitsell
(1914), 181 Ind. 126, 138, 103 N. E. 1078; 2 Gavit, Indiana Pl. & Pr., p. 2081, §333. Motions to modify a judgment or in arrest of judgment or to reconsider the ruling or a motion to vacate a
In Schneidt v. Schneidt (1919), 69 Ind. App. 666, 122 N. E. 588, appellant prosecuted an action to vacate a decree of divorce. A demurrer was sustained to the complaint, and judgment rendered against appellant for refusal to plead over. Appellant then filed a motion for new trial on the ground the court еrred in sustaining the demurrer. The court held filing the motion for new trial did not extend the time for perfecting an appeal, аnd reasoned as follows:
“The cause never having been tried, of course there could be no new trial. The pretended motion for a new trial was an absolute nullity, and presented nothing to the trial court for its consideration. The timе for taking an appeal cannot be extended in that manner. Rooker v. Bruce (1908), 171 Ind. 86, 85 N. E. 351; Goodrich v. Stangland (1900), 155 Ind. 279, 58 N. E. 148; Erwin School Tp. v. Tapp (1890), 121 Ind. 463, 23 N. E. 505; Corwin v. Thomas (1882), 83 Ind. 110; Reed v. Spayde (1877), 56 Ind. 394; Fisk v. Baker (1874), 47 Ind. 534; City of Huntington v. Cast (1900), 24 Ind. App. 501, 56 N. E. 949; Standard Oil Co. v. Bowker (1895), 141 Ind. 12, 40 N. E. 128; Decker v. Mahoney (1917), 64 Ind. App. 500,116 N. E. 57.” Page 667.
Since the judgment in this appeal was entered without any trial, the motion for new trial presented nothing and could not extend the time for perfecting an appeаl. Under Rule 2-2 the time for perfecting the appeal by filing a transcript and assignment
Appeal dismissed.
Bobbitt, Landis and Arterburn, JJ., concur. Achor, J., not participating.NOTE.—Reported in 129 N. E. 2d 796.