20 Ind. App. 142 | Ind. Ct. App. | 1898
Lead Opinion
Action by appellants against appellees for the enforcement of a material man’s lien. Mortgagees and other lien holders were made parties defendants. The court made a special finding of facts, and in its conclusions of law thereon, held that the liens of the mortgagees were prior to those claimed by virtue of the mechanic's lien law, and rendered judgment accordingly. The only error assigned is, “that the court erred in its conclusions of law upon the facts found.” Counsel for appellee contend that the questions sought to be presented by appellants are not before the court, because what is claimed to be a special finding is only a general finding, for the reason that it is not signed by the judge who presided at the trial.
The Hon. Lucius Hubbard was the regular judge of the court below, and the record shows that what purports to be a special finding of facts and conclusions
The next record entry is as follows: “And after-wards to wit, on Saturday, April 4, 1896, the same being the 24th day of the March term of the court aforesaid, before the I-Ion. Andi’ew Anderson, special judge, the following further proceedings were had in the above entitled cause: Come the parties, and the court files its special findings and conclusions of law thereon as follows.” It is also recited in this entry that “said parties request the court to make a special finding of facts herein in writing and to state the conclusions of law thereon, and the court having heard the evidence, the argument of counsel,-and being duly advised, makes and files in writing its special finding herein as follows.” And then follows the special finding and conclusion of law thereon. This entry shows that the Hon. Andrew Anderson, special judge, presided in said cause; that he tried the same, and upon proper request made and filed his special finding and conclusions of law, and that he did not sign the special finding but that same was signed “Lucius Hubbard,” the name of the regular judge.
It is the law in this State, that unless it appears from the record that the judge who is shown to have tried the cause signed the special finding the same will be treated only as a general finding. McCray v. Humes, 116 Ind. 103-111, and cases there.cited; Branch v. Faust, 115 Ind. 464; Conner v. Town of Marion, 112 Ind. 517; Thornton’s Ind. Pract. Code, section 551, note 2.
If it appeared from the record that the proceedings were had before Judge Hubbard, the regular judge; that he hád made and filed the special findings, and that the same was signed by him and that afterwards a special judge had rendered judgment thereon, such special finding and the conclusions of law would be in the record and would be treated as such and not as a general finding. If the judge of a court, regular or special, try a cause, and upon proper request, makes, files,and signs a special finding, all of which is shown by the record, and for any reason such judge is unable to act further in said cause, another judge, regular or special, can act in such cause until final judgment therein. If the judge who tried said cause should
Affidavits have been filed in this court for the purpose of showing that the transcript does not correctly set forth the proceedings in the court below, and we are asked to decide the cause upon the facts thus shown, and not upon the record. Counter affidavits are also filed. If a transcript filed in this court is not a correct copy of the papers and entries in the trial court, it cannot be corrected in this court by affidavit, but on proper application a writ of certiorari will be issued, requiring the clerk of the court below to correct the transcript so that it correctly sets out the proceedings as shown by the record in the trial court. Elliott’s App. Proc., sections 186-187.
If the record in the court below does not correctly set forth the proceedings, the application to correct the record must be made there; and if corrected in the court below, such corrected entry may be brought into the record in this court by certiorari. The supposed special finding being only a general finding, the assignment of error presents no question for our consideration. Judgment affirmed.
Rehearing
On Petition fob Reheabing.
The able brief of counsel for appellants in support of the petition for a rehearing in this cause does not show error in the statement of the ree