78 Ind. App. 617 | Ind. Ct. App. | 1922
— This is an appeal from a judgment in an action in replevin instituted by appellee against appellant. The errors properly assigned are based on the actions of the court in stating each of its conclusions of law on the special finding of facts, and in overruling appellánt’s motion for a new trial.
Appellee contends that no question is presented by this appeal, since each proposition or point contained in appellant’s brief is based on an alleged special finding of facts and conclusions of law stated thereon, which are not a part of the record. It is the settled law in this state that a special finding of facts which has not been signed by the trial judge, or made a part of the record by a bill of exceptions, or filed and made a part of the record by an order of the trial court, can only be regarded as a general finding. Service v. Gambrel (1886), 110 Ind. 349, 11 N. E. 240; Coffinberry v. McClellan (1904), 164 Ind. 131, 73 N. E. 97; Coulter v. Crawfordsville Trust Co. (1909), 45 Ind. App. 64, 88 N. E. 865; Callon v. Merchants Nat. Bank (1921), 74 Ind. App. 639, 129 N. E. 482; Massachusetts, etc., Ins. Co. v. Indiana State Bank (1921), 76 Ind. App. 608, 132 N. E. 693.
In this case it' is not contended that the purported special finding of facts and conclusions of law, found in the transcript, were signed by the trial judge, or made a part of the record of the trial court by a bill of exceptions. It only remains for us to de
“And afterwards to wit on the same day the same being the same judicial day of said court, before the same honorable judge thereof, the following further proceedings were had herein, viz.: The defendant in the above entitled cause having filed before the trial of said cause his request that the court find and return a special finding of facts therein and state his conclusions thereon; and all the evidence having been heard in said cause and the court being duly advised in the premises now makes and files his special finding of fact in said cause in the language following, to wit: (H. I.) And the court after the making and filing of said finding of facts states his conclusions of law thereon as follows, to wit, (H. I.) to each of which conclusions of law, separately and severally, the defendant at the time excepted and now excepts.
* * * 99 .
This is all that appears with reference to the alleged special finding of facts and conclusions of law, and is not sufficient to show that they were made a part of the record of the trial court by an order thereof. To make a matter a part of the record by that means, it is essential that such matter be set out in the order. Close v. Pittsburgh, etc., R. Co. (1898), 150 Ind. 560, 50 N. E. 560; Allen v. Hollingshead (1900), 155 Ind. 178, 57
But appellant contends that the alleged special finding of facts and conclusions of law, found in the transcript, are a part of the record of the trial court by vir- . tue of the following provisions of the statute:
“Every pleading, motion in writing, report, deposition or other paper filed or offered to be filed, in any cause or proceeding, whether received by the court, refused or stricken out, shall be a part of the record ' from the time of such filing or' offer to file. Any order or action of the court in respect to any such pleading, motion in writing, report, deposition or other paper, and every exception thereto taken by any party shall be entered by the clerk on the minutes or record of the court, and the same when so entered shall be a part of the record without any bill of exceptions. * * *”
Acts 1915 p. 134, §663 Burns’ Supp. 1921.
We cannot concur in this contention. It is evident
The only ground for a new trial, to which appellant has attempted to direct any proposition or point, is, that the decision of the court is not sustained by sufficient evidence. It is contended, in support of this ground, that the uncontradicted evidence shows that appellant’s possession of the goods in question was lawful, and hence a demand was necessary to render his possession unlawful; that until his possession
Appellant has challenged the sufficiency of the evidence in other particulars, but an examination of the record discloses some evidence tending fairly to establish every fact essential to appellee’s right of recovery. Where this is true we must accept the decision of the court as conclusive, although the evidence, in some particulars, may be strongly contradicted and not entirely satisfactory. Gray v. Blankenbaker (1918), 68 Ind. App. 558, 121 N. E. 84; Seibold v. Welch (1922), ante 238, 135 N. E. 258. Appellant having failed to show any reversible error in the record, the judgment is affirmed.