181 Ind. 188 | Ind. | 1914
This was an action by appellants against Gubbins for the dissolution of a partnership between them and for an accounting and a receiver for the business and assets of the concern; and against both appellees for injunction to restrain them from disposing of a sum of money on deposit in the name of Gubbins, alleged to be money of the firm, and to restrain Gubbins from collecting or receiving any money or assets of the firm. The answer of appellees to appellants’ complaint was a general denial and on the issues thus raised the cause was submitted to the court and part of the evidence heard, whereupon the trial was interrupted by a written stipulation in material substance as follows: That the court should refer the cause to the probate commissioner who should hear the evidence and report his finding; that the evidence already taken should be written out in longhand and the commissioner should consider that in connection with all the rest of the evidence which should be submitted to and heard by him; that the parties would submit their evidence in a friendly manner, waiving technicalities with the view of arriving at a cor
Acting upon this agreement the court entered a finding that a receiver should be appointed, the partnership dissolved and an accounting had, together with a finding That the contract for the Newcastle job had been duly assigned to and taken over by Gubbins and an indemnifying bond given to appellants by Gubbins as provided in the agreement. Thereupon the court appointed a receiver, decreed a dissolution of the partnership, ordered the payment of the cheeks and an account taken of the firm business as provided in the stipulation. By this order, the court also referred the cause to the probate commissioner to hear the evidence and report his finding therefrom of the account between the partners and whether the Broderick and sidewalk jobs and the money on deposit were firm -assets or the personal property of Gubbins. The commissioner reported a finding in the nature of a special finding of facts with ultimate facts and conclusions stated as recommendations from which it appeared that the account in final settlement between the partners showed $87 to be due from the firm to Gubbins and nothing to the other partners and that neither partner personally owed anything to the firm; that the Broderick and sidewalk jobs and the money in controversy on deposit in the People’s Trust Company were the personal property of Gubbins. Appellants moved to reject and strike out the report of the commissioner on the ground that the findings were not full enough and that the evidence was not reported, and to require the commissioner to report fuller findings and the evidence. These motions were overruled. Appellants excepted to the findings on the grounds that they were not sustained by sufficient evidence and were contrary to law. The exceptions were overruled and the court adopted the findings of the commissioner. Appellants moved for a venire de novo, and also for a new trial;
Appellees have made it to appear that, at the conclusion of the evidence before the commissioner, the slander suit was dismissed in accordance with the stipulation and has moved to dismiss this appeal on the ground that the agreement, upon the performance of the things specified to be done, to “abide the decision of the court in all matters” was an agreement to make the decision of the trial court final and a waiver of the right to appeal. While the motion to dismiss has some just basis, the judgment must be affirmed and it is unnecessary to pass upon the motion.
The trial court treated the report of the commissioners as a general finding, adopted it as its own finding and rendered judgment accordingly. Counsel for appellants now contend that the reference was to the probate commissioner under the provisions of §2735 Burns 1908, Acts 1903 p. 249, and amendatory acts, Acts 1911 pp. 63, 646, which provide for the reference by the circuit judge, in Delaware and other counties, on his own motion, of certain matters to the probate commissioner “to hear evidence upon and report his finding.” And, it is claimed by counsel that this provision must be held to require the facts to be found specially in order to uphold its constitutional validity. Treating the finding in this ease as a general one as the court did, it is contended, if authorized by the statute in question, would render such statute unconstitutional and void as vesting the probate commissioner with judicial powers. The very case cited by counsel to sustain this contention refutes it. Shoultz v. McPheeters (1881), 79 Ind. 373, 378. It was there said: “The power
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There was, in this case, no request for a special finding, and, while the finding returned by the commissioner was in form and substance a special finding, it must, in accordance with the settled rule, be regarded as a general finding only. A statement of facts in a general finding does not transform it into a special finding. Lawson v. Hilgenberg (1881), 77 Ind. 221; Levy v. Chittenden (1889), 120 Ind. 37, 22 N. E. 92; Kelley v. Bell (1909), 172 Ind. 590, 597, 88 N. E. 58, and eases there cited. As a general finding it was adopted by the court and became the general finding upon which the judgment was rendered. Terre Haute, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 438, 65 N. E. 401. Moreover, the motion to strike out and reject the findings of the commissioner was, in effect, a belated request for a special finding made after the findings were announced. This, of course, was too late to be effective. Moore v. Barnett (1861), 17 Ind. 349; Hartlep v. Cole (1889), 120 Ind. 247, 22 N. E. 130; Brundage v. Deschler (1891), 131 Ind. 174, 29 N. E. 921; Stumph v. Miller (1895), 142 Ind. 442, 41 N. E. 812; Turpie v. Lowe (1902), 158 Ind. 47, 54, 62 N. E. 628; Tevis v. Hammersmith (1908), 170 Ind. 286, 84 N. E. 337; Bass v. Citizens Trust Co. (1904), 32 Ind. App. 583, 70 N. E. 400. Where there has been no request for a special finding, the court cannot be required to restate and enlarge its general finding so as to make a restatement of
The motion for a venire de novo is an ancient common-law remedy which was, technically speaking, applicable only to jury trials. It is not a part of our code but has, by common usage, been adopted as a part of our practice and applied when either a verdict or finding was so defective in form that no judgment could be rendered thereon. As the finding in the case before us must be deemed to be a general one, it is clear that no error was committed by the trial court in overruling the appellants’ motion for a venire de novo. Cooley v. Kelley (1913), 52 Ind. App. 687, 96 N. E. 638, 98 N. E. 653; Kelley v. Bell (1909), 172 Ind. 590, 88 N. E. 58.
Where the evidence in a reference such as this has not been reported or brought before the court, exceptions to the report raise no question as to the correctness of the finding reported. Bristow v. McClelland (1889), 122 Ind. 64, 22 N. E. 299. As the evidence has' not been brought up, no question is presented on the exceptions to the findings of the commissioner or the motion for a new trial. Judgment affirmed.
Note. — Reported in 104 N. E. 13. See, also, under (1) S Cyc. 196; (2) 8 Cyc. 823, 34 Cyc. 838; (3) 34 Cyc. 843; (4) 34 Cyc. 858; (5) 34 Cyc. 878; (6) 38 Cyc. 1987; (7) 34 Cyc. 839, 842; (8) 34 Cyc. 841; (9) 34 Cyc. 842; (10) 38 Cyc. 1956; (11) 38 Cyc. 1990; (12) 34 Cyc. 865.