Kruger v. Duckwall

78 Ind. App. 577 | Ind. Ct. App. | 1922

Nichols, J.

— This action by appellees against appellant was commenced before a justice of the peace and afterward appealed to the Marion Circuit Court.

1. The action was for possession of real estate owned by appellees and occupied by appellant. The cause was submitted to the court for trial on February 1, 1921, at which time appellant requested special findings of fact and conclusions of law thereon, and on February 2, 1921, being the twenty-seventh judicial day of the January term of said circuit court, the court filed its findings of fact upon which it stated conclusions of law in favor of appellees, and rendered judgment thereon for possession of the real estate involved and for damages for the detention in the sum of $318.25. The findings of fact, however, were not signed by the court and hence are treated as general findings only. Smith v. Goetz (1898), 20 Ind. App. 142, 49 N. E. 386, 50 N. E. 397.

2. There was no motion for a new trial nor a motion of any kind to set the judgment aforesaid aside. On February 15, 1921, being the eighth judicial day of the- February term of court, appellant filed a motion to reconsider the special findings of fact and conclusions of law. We are not apprised as to the contents of the motion for it does not appear in the record. It was however, sustained, and the court thereupon set aside the aforesaid special findings of fact and conclusions and entered what is designated by appellant as a “corrected special finding of facts and conclusions of law” upon which the court again entered judgment in favor of appellees. From this last alleged judgment appellant prosecutes this appeal, assigning as error the court’s conclusions of law. Appellees have filed their motion to dismiss the appeal contending that the judgment of the Marion Circuit Court rendered at the January term, 1921, is in full force and effect, and that the special findings of fact and conclusions- of law and judgment rendered at the Fébruary term, 1921, of said court are each a nullity. There is merit in this contention. 15 R. C. L., Judgments, §129, after stating that the general power of a court of record over its own judgments, orders and decrees during the existence of the term at which they were first made is undeniable, then states: “But it is also a rule of the common law that the jurisdiction of the court over its decrees terminates with the close of the term at which they were rendered, and the judgment may be amended or corrected only at the term during which it was entered and not thereafter.” Many authorities are cited to sustain this principle. To this effect see, Brackenridge v. M’Culloch (1844), 7 Blackfd. 334; Blair v. Russell (1849), 1 Ind. 516; Bland v. State (1851), 2 Ind. 608.

3. Under §405 Burns 1914, §396 R. S. 1881, relief from a judgment by default may be, had, and under §645 Burns 1914, §615 R. S. 1881, by proper proceeding a judgment may be reviewed but there is no claim here that such statutory relief is sought. A motion to reconsider the special findings of fact, such as we assume the appellant’s motion to have been, is not known to our practice. The only remedy, if the facts are not correctly found, is by a motion for a new trial. Chicago, etc., R. Co. v. State (1902), 159 Ind. 237, 64 N. E. 860; Gas Light, etc., Co. v. City of New Albany (1902), 158 Ind. 268, 274, 63 N. E. 458; Citizens’ Trust Co. v. National, etc., Supply Co. (1912), 178 Ind. 167, 98 N. E. 865, 41 L. R. A. (N. S.) 695; Delaney v. Gubbins (1914), 181 Ind. 188, 104 N. E. 18; Hatfield v. Rooker (1914), 56 Ind. App. 1, 104 N. E. 798; Todd v. Howell (1911), 49 Ind. App. 59, 96 N. E. 618.

4. No such motion having been filed, we hold that the judgment of the trial court entered in the January term* 1921, is the final judgment in this cause and is the judgment by which the parties are now bound. In other words, the proceedings and purported judgment entered in the February term were without authority of law. The judgment rendered in the January term was not affected thereby and is therefore in full force and effect, and no appeal having been taken therefrom, this appeal is dismissed.