Opinion
No. 19,434.
Filed September 28, 1960.
1. APPEAL — Judgments — Final Judgment. — An entry made by the trial court that "the court having heard said stipulation . . . and being duly advised in the premises, now sustains said plea in abatement. To which ruling of the court the plaintiff objects and excepts," is not a final judgment as will support this appeal. p. 62.
2. APPEAL — Judgments — Final Judgment — Disposing of All Issues — Suspension of Appeal — Rules of Supreme Court — Discretion of Court. — In this attempted appeal involving ruling sustaining plea in abatement it is determined that no final judgment has been made and therefore, the Appellate Court, in its discretion, suspends consideration of the appeal until the trial court disposes of the issue made on the plea in abatement by entry of an appropriate judgment thereon. Rule 2-3 of the Supreme Court. p. 62.
From the Noble County Circuit Court, Lowell L. Pefley, Special Judge.
Wayne A. Daubenspeck and others, appellants, filed complaint and remonstrance seeking to prevent annexation of territory by appellee, City of Ligonier. The trial court sustained appellee's plea in abatement and appellants attempt to take appeal from such ruling.
Consideration of appeal suspended. By the court in banc.
Vernon, Hartzog, Barker Hepler, of Goshen, for appellants.
John C. Hagen, of Ligonier, for appellee.
Appellants filed complaint, with alleged remonstrance, in the office of the Clerk of the Noble Circuit Court against appellee, seeking to prevent the annexation of territory by appellee, and summons issued thereon. Appellee filed written special appearance for purpose of filing a plea in abatement. Appellee duly filed said plea in abatement alleging therein that the appellants had not properly filed their complaint and remonstrance and that, consequently, the Noble Circuit Court did not have jurisdiction to hear the same. Appellant replied to said plea in abatement by admission and denial.
Upon submission of the issue thus made, the court entered the following:
"The court having heard said stipulation and argument of counsel and being duly advised in the premises, now sustains said plea in abatement. To which ruling of the court the plaintiff objects and excepts."
Appellants filed their motion for a new trial upon the specified grounds that (1) the finding and decision of the court is not sustained by sufficient evidence, and (2) the finding and decision of the court is contrary to law. The motion for a new trial was overruled and this appeal followed. The only assignment of error is that the court erred in overruling said motion for a new trial.
We are of the opinion that the record shows no final 1. judgment to support this appeal. Rule 2-3, as amended May 9, 1949, provides, in part:
"No appeal will be dismissed as of right because the case was not finally disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, suspend consideration until disposition is made of such issues, . . ."
Pursuant to the discretion vested in us by said rule, we have concluded to and do now suspend consideration of this appeal and appellee's motion to affirm, filed herein, until such time 2. as the Noble Circuit Court finally disposes of the issue made on said plea in abatement by the entry of an appropriate judgment thereon. It matters not how decisive the ruling of the trial court may seem to be, nor that it seems clearly indicative of what the final judgment will be, it, nevertheless, is not a final judgment.
The Clerk of the Noble Circuit Court is hereby ordered to certify a copy of such judgment, when entered, to the Clerk of this Court, and the same is hereby ordered to thereupon become a part of the transcript of the record heretofore filed in this appeal. Ax v. Schloot (1945), 116 Ind. App. 303, 304, 64 N.E.2d 31.
NOTE. — Reported in 169 N.E.2d 217.