Opinion
No. 17,222.
Filed November 17, 1944. Rehearing denied December 19, 1944. Transfer denied January 11, 1945.
1. APPEAL — Final Judgments — Partition Decree — Venue Changed After Judgment Entered. — In an action for partition and to quiet title to real estate, a judgment ordering sale of the land as indivisible had sufficient finality to support an appeal to the Appellate Court, even though, after entry of the judgment, the lower court had further duties to perform before the litigation could be considered finally disposed of and the cause was a pending action to the extent that the venue thereof could be changed by agreement of the parties back to the county where the action first originated. p. 281.
2. VENUE — Change of Venue — Jurisdiction and Proceedings After Change — Agreement of Parties — Effect. — Where the venue of an action for partition and to quiet title to real estate was changed from the county wherein the real estate was situated, and the action was tried and judgment entered, the venue was properly changed back to the county where the real estate was situated and where the action first originated pursuant to an agreement of the parties entered in the consent judgment where the action was tried, and defendants, having acquiesced by voluntary agreement in such change, could not successfully assail it, even though the action of the court in granting it was erroneous. p. 281.
3. JUDGMENT — Setting Aside — Jurisdiction Divested and Acquired By Another Court as Result of Change of Venue — Termination of Authority. — As a general rule, a court has unlimited power over its judgments during the entire term at which they are rendered and during such term, for good cause, may correct, modify or vacate any of its judgments or orders made therein, but after it has divested itself of a jurisdiction which has been lawfully acquired by another court, it cannot vacate or set aside the order by which it did so, nor recall the case nor exercise any further jurisdiction therein. p. 282.
4. ATTORNEY AND CLIENT. — Authority — Stipulations and Agreements Relative to Procedure. — An attorney represents his client in the management of the case and has implied authority to bind him by stipulations and agreements relative to procedure. p. 282.
5. VENUE — Change of Venue — Jurisdiction and Proceedings After Change — Agreement of Parties — Proceedings to Modify. — Where a change of venue was taken pursuant to the agreement of the attorneys in an action, any circumstances which were such that one of the parties should not be bound by the agreement made for them by their attorneys should have been presented, after the change had been perfected, to the court to which the action was venued which would have had full jurisdiction to have made any appropriate order or ruling, and hence a motion in the court where the venue was granted to modify the judgment by striking out the agreement concerning the change of venue was improper. p. 282.
6. NEW TRIAL — Proceedings to Procure — Proper Judge to Rule on Motion — Venue Changed By Agreement After Judgment. — A change of venue pursuant to the agreement of the parties after an action had been tried, whereby the cause was sent back for further necessary proceedings to the court wherein the real estate involved in the litigation was situated, was not erroneous as precluding the judge of the court who tried the case from passing upon a motion for a new trial, since under Rule 1-9 of the Supreme Court the judge who presided at the trial would pass upon the motion in whatever court it was properly filed. p. 283.
7. APPEAL — Final Judgments — Venue Changed By Agreement After Judgment — Lack of Jurisdiction of Court From Which Change Taken. — Where the venue of an action for partition and to quiet title of real estate was changed to a county other than that in which the real estate was situated, and the action was tried and judgment entered, and thereafter by agreement of the parties the venue was changed back to the county where the real estate was situated and wherein the action first originated, any and all steps taken in the court where the case was tried after the change of venue was perfected were ineffective for any purpose, and hence an appeal could not be taken from the action of that court in modifying its judgment by striking out the order for the change of venue. p. 283.
8. NEW TRIAL — Proceedings to Procure — Proper Judge to Rule on Motion — Effect of Supreme Court Rule. — The rule that an application for a new trial must be filed in and addressed to the court in which the trial was had, is no longer applicable, since Rule 1-9 of the Supreme Court, 1943 Revision, provides that the judge who presides at the trial shall rule on such motion, and since such judge may rule upon it in any court wherein it is properly filed. p. 284.
From the Hendricks Circuit Court; Horace L. Hanna, Judge.
Action by Robert A. Hoffman against Edward W. Hoffman and others for partition of and to quiet title to certain real estate, wherein Beulah E. Hoffman, wife of plaintiff, intervened and asserted title with her husband to such real estate. From a judgment for defendants, plaintiff and intervenor attempted to appeal, and defendants moved to dismiss the appeal because the decree, as finally entered by agreement of the several parties, provided that all rights of appeal and to modify the judgment were waived, and the venue of the cause was changed back to the county wherein the real estate was located.
Appeal Dismissed. By the court in banc.
Hughes Hughes, and M.J. Murphy, all of Greencastle, and C.V. Sears, of Danville, and Kivett, Chambers, Vernon Kivett, of Indianapolis, all for appellant.
Royse Travis, of Indianapolis, Hume Gaston, of Danville, and Harding Harding, of Crawfordsville, all for appellee.
This cause, originally filed in the Putnam Circuit Court, is a proceeding for partition and to quiet title to real estate in that county. It was venued to the Hendricks Circuit Court and there tried to a jury, who returned a verdict in favor of the appellees on May 24, 1943, and judgment was entered thereon the following day.
The decree, which was entered by agreement of counsel representing the several parties, included the following paragraph:
"And now all parties, by their several attorneys, waive all rights of appeal and to modify the judgment herein, and all and severally consent that the venue of this cause may be changed back to the Putnam Circuit Court, and accordingly, the court now orders the venue be changed to the Putnam Circuit Court, and the Clerk of the Hendricks Circuit Court is directed to transcript and certify all the record of this cause in the Hendricks Circuit Court, together with all pleadings and papers herein to said Putnam Circuit Court; all reports and further proceedings in this cause to be had in said court."
On June 5, the change of venue was perfected and the Putnam Circuit Court assumed jurisdiction of the cause.
On June 11, the appellants filed in the Hendricks Circuit Court their separate verified motions to set aside the judgment and decree and to modify and correct it by striking therefrom their waivers of their right to appeal, and they also filed their separate motions for a new trial.
On July 16, the Hendricks Circuit Court granted the motions to modify and correct the decree and modified the same by striking therefrom the paragraph above quoted, and further ordered: ". . . that all the papers in this cause heretofore sent to the Putnam Circuit Court, under that part of the order which is now stricken out, be returned to the Circuit Court of Hendricks County, Indiana."
The motions for new trial were overruled on the same day, and steps were taken to perfect this appeal. All dates above mentioned were within the May term of the Hendricks Circuit Court.
The appellees move to dismiss the appeal, contending, among other things, that at the time of the filing of the motions for new trial in the Hendricks Circuit Court, there was pending there no cause of action in which an appeal could be prosecuted.
The appellants insist that jurisdiction remained in the Hendricks Circuit Court despite the proceedings above shown, and that no change to Putnam County could be granted without first setting aside the submission of the cause.
It makes no difference, as we view it, whether either party could have compelled a change of venue from the county upon the filing of an application therefor correct in form at 1, 2. that stage of the proceedings when the agreement was shown of record. No application was filed. The title to lands was in issue in the case, and the judgment, ordering as it does the sale of indivisible real estate, had sufficient finality to support an appeal to this court, Stauffer v. Kesler (1920), 191 Ind. 702, 127 N.E. 803; Jones v. Jones (1926), 84 Ind. App. 176, 149 N.E. 108, 150 N.E. 65, yet under our statutes governing partition of real estate (§ 3-2401 et seq., Burns' 1933) the court after the entry of this judgment had further duties to perform before the litigation could be considered finally disposed of, and the cause was, to that extent at least, a pending cause of action. For the reason, according to the briefs, that it would be more convenient and economical to transcript the proceedings to the county where the land was situated, there to complete this litigation in which further steps were necessary to be taken, the parties voluntarily agreed to and the court approved the change of venue, and we know of nothing in our law which condemns such procedure. The law gives the Putnam Circuit Court general jurisdiction of the subject matter. The agreement of the parties conferred upon that court jurisdiction of their persons. Garrigan v. Dickey (1890), 1 Ind. App. 421, 27 N.E. 713. We therefore conclude that the change was properly granted to the Putnam Circuit Court, but even though erroneous, the appellants, having themselves been acquiescent actors in procuring the change to a court having jurisdiction of the subject matter, may not now successfully assail it. Coleman v. Floyd (1892), 131 Ind. 330, 31 N.E. 75; Ritenour v. Hess (1929), 201 Ind. 327, 166 N.E. 657.
As to the effect of the court's order of July 16, granting appellants' motions to modify and correct the decree and attempting to recapture jurisdiction, it may be said that, 3. generally speaking, a court has unlimited power over its judgments during the entire term at which they are rendered, Livingston v. Livingston (1921), 190 Ind. 223, 130 N.E. 122, and during such term, for good cause, may correct, modify or vacate any of its judgments or orders made therein, State ex rel. v. Superior Court of Marion County (1931), 202 Ind. 456, 174 N.E. 732, but after a court has divested itself of a jurisdiction which has been lawfully acquired by another court, it cannot vacate or set aside the order by which it did so, Sun Publishing Co. v. Bonifas (1939), 106 Ind. App. 607, 19 N.E.2d 879, nor recall the case nor exercise any further jurisdiction therein. State ex rel. v. Superior Court of Marion County, supra.
An attorney represents his client in the management of a case and has implied authority to bind him by stipulations and agreements relative to procedure. Terre Haute Brewing 4, 5. Company v. Ward (1914), 56 Ind. App. 155, 102 N.E. 395, 105 N.E. 58. On the face of the record in this case the proceedings leading to the change of venue were in all things regular. If in fact the circumstances were such that the appellants should not be bound by the agreement made for them by their attorneys, that situation should have been presented, after the change of venue had been perfected, to the Putnam Circuit Court, which court had full jurisdiction to make any appropriate order or ruling. Sun Publishing Co. v. Bonifas, supra. See also State ex rel. Karsch v. Eby, Judge (1941), 218 Ind. 431, 33 N.E.2d 336.
We find no merit in appellants' contention that the cause must have remained in the Hendricks Circuit Court so as to permit the Judge of that court to pass upon the motions for new trial. 6. Under Rule 1-9 of the Supreme Court, 1943 Revision, the Judge of the Hendricks Circuit Court, having presided at the trial, would pass upon those motions in whatever court they were properly filed.
The Hendricks Circuit Court having lost and never regained jurisdiction of the cause, we conclude that all steps taken there after the change of venue was perfected were ineffective 7. for any purpose and there is, therefore, no foundation upon which to base this appeal.
Appeal dismissed.
Royse, J. not participating.
Note. — Reported in 57 N.E.2d 591.
ON PETITION FOR REHEARING.
The appellants insist we erroneously decided this case, and they rely strongly on the cases of State ex rel. Neal v. Superior Court of Marion County (1931), 202 Ind. 456, 174 N.E. 732, and Lowry v. Indianapolis Traction, etc., Co. (1921), 77 Ind. App. 138, 126 N.E. 223, both of which cases were carefully considered by us before reaching the conclusion announced.
The Neal case did not involve an agreement to change the venue. In our original opinion we attempted to make it clear that we were not considering the right of either party to compel a change, but only their rights under the situation presented.
Under a factual situation quite different, this court in the Lowry case said: "We hold that an application for a new trial whether it be by motion or complaint must be filed in and 8. addressed to the court in which the trial was had." That case was decided before the adoption of Rule 1-9 of the Supreme Court, 1943 Revision and in our opinion the existence of Rule 1-9 removes any reason for the application of the rule announced in the Lowry case to the case at bar.
Petition for rehearing denied.
Royce, J., not participating.
NOTE. — Reported in 58 N.E.2d 201.