Opinion
No. 14,814.
Filed May 11, 1934.
1. TRIAL — Special Finding of Facts — Request — Duty of Court. — Where a party filed a written motion at the beginning of the trial requesting the court to make a special finding of the facts and state conclusions of law thereon, the request was properly and timely made, and the court's duty to make such special finding was mandatory. p. 624.
2. TRIAL — Special Finding of Facts — Request — Waiver. — Where plaintiff duly excepted to a general finding for defendants, he did not waive his right to a special finding of facts which he had properly and timely requested. p. 624.
3. TRIAL — Special Finding of Facts — Refusal of Timely Request — Effect. — Where a request for special finding of facts is properly and timely made, and not waived, it is reversible error to refuse the request and make a general finding. p. 624.
From Lake Circuit Court; Charles E. Greenwald, Judge.
Action by William P. Patterson against the City of Gary and others. From a judgment for defendants, plaintiff appealed. Reversed. By the court in banc.
Sheehan Lyddick, for appellant.
Shively Arnold, Harry Long, and R.R. Pyatt, for appellees.
The issues in this case were formed by an amended complaint in two paragraphs and an answer in general denial filed thereto. Appellant, being plaintiff below, filed a written motion, at the beginning of the trial, requesting the court to make a special finding of the facts and state conclusions of law thereon. At the close of appellant's evidence the appellees moved for judgment. The court then made a general finding, which was excepted to by the appellant, for the defendants below and returned a judgment thereon. Thereupon appellant filed a motion for a new trial, one of the reasons therein assigned being that "The court erred in refusing to enter and make up special finding of facts and rendering conclusions of law thereon, pursuant to plaintiff's motion therefor." That motion was denied and this appeal followed, assigning, among other reasons, that the court erred in overruling appellant's motion for a new trial.
In this case the request to find facts specially was properly and timely made, therefore, under our Code the duty of the Court to find facts specially is mandatory. State v. Wright 1-3. (1928), 89 Ind. App. 244, 161 N.E. 839. The finding of the court here is a general finding, to which the appellant duly excepted. Inasmuch as appellant excepted to such general finding he did not waive his rights to the special finding requested by him, at the beginning of the trial. Not having waived his rights to such special finding the court's refusal to find specially is reversible error. Shroyer v. Campbell (1902), 31 Ind. App. 83, 67 N.E. 193; Teague v. Owens (1894), 11 Ind. App. 200, 38 N.E. 541.
Since we have arrived at this conclusion it makes it unnecessary to discuss the other errors assigned.
Judgment reversed with instructions to grant the appellant's motion for a new trial.
Curtis, J., not participating.