60 Ind. App. 591 | Ind. Ct. App. | 1915
This was an action brought by the appellee to establish a claim against the estate of appellant’s decedent. At the close of the evidence the appellant moved the court for a peremptory instruction in his behalf. In the absence of the jury the court heard argument respecting the giving of the instruction, and at the close of the argument indicated its determination in the following language: “The court announces its decision, which is that it will give instruction No. 1 to the jury, directing the jury to return a verdict for the defendant herein.”
In Crafton v. Mitchell (1893), 134 Ind. 320, 33 N. E. 1032, two causes were identical, except as-to parties and lands involved, and were tried together. The court having read the special finding and conclusions of law in one of the cases, announced that the finding and conclusions in the other case had not been prepared, but that they would be identical with those read, except as to parties and lands described. Held, that the court did not thereby announce the finding in such other cause, within the meaning of the statute, and that there was no error in sustaining plaintiff’s motion to dismiss such cause thereupon interposed. In Mitchell v. Friedly (1891), 126 Ind. 545, 26 N. E. 391, there was a like holding, where the court having announced a general finding, recalled it on the suggestion that a special finding had been requested, the court saying in substance, that the general finding so announced was not binding on the court, and “was no more authoritative under the circumstances, than if he had called the attorneys to the bench and made known what his finding would be”; that it could not be said as matter of law that 'appellant was informed when he made the motion to dismiss that the court’s finding would be adverse to him. See, also, Cohn v. Rumely (1881), 74 Ind. 120; Burns v. Reigelsberger (1880), 70 Ind. 522; Beard v. Becker (1880), 69 Ind. 498; Louisville, etc., R. Co. v. Wylie (1890), 1 Ind. App. 136, 27 N. E. 122; Halstead v. Sigler (1905), 35 Ind. App. 419, 74 N. E. 357; Moore-Mansfield, etc., Co. v. Marion, etc., Traction Co. (1913), 52 Ind. App. 548, 555, 101 N. E. 15.
Assuming, for purposes of the discussion, the soundness of appellant’s position that the question here must be determined from a consideration of
Note. — Reported in 108 N. E. 975. As to what constitutes final submission of cause so as to preclude voluntary dismissal, see 4 Ann. Cas. 510. See, also, under (1) 3 Cyc 223; (2) 38 Cyc 1588, 1589; (3) 38 Cyc 1589.