Opinion
No. 30,028.
Filed June 8, 1961.
APPEAL — Mandate To Trial Court To Make Additional Finding — Motion for New Trial — Writ of Certiorari. — Where pursuant to Supreme Court mandate the trial court set aside judgment, made an additional finding of fact and entered a new judgment on the basis of said additional finding of fact, appellant is entitled to file a motion for new trial based upon the new judgment and additional finding and have said matters reviewed by the trial court before certifying the case to Supreme Court on appeal and therefore, instant application for writ of certiorari by appellees is denied.
Appellees, J.W. Scatterday, Inc. and Travelers Indemnity Company, have filed an application for writ of certiorari. Application denied.
Bernard Stroyman and Fansler, Fauvre, Dongus Barnard, both of Indianapolis, for appellant.
Waldo C. Ging, of Greenfield, C. Richard Fulmer and Locke, Reynolds, Boyd Weissell, both of Indianapolis, for appellees.
The appellees have filed an application for Writ of Certiorari in this case.
The mandate of this court in the opinion previously written is as follows:
"Therefore, under Rule 2-30, judgment herein is ordered set aside and this case remanded back to the trial court for `findings on the material issues of fact' as to the completion of the contract which is the subject of this litigation, and for further proceedings consistent with this opinion.
"Judgment reversed."
Superior Trailer Mfg. Corp. v. J.W. Scatterday, Inc. (1960), 241 Ind. 459, 169 N.E.2d 721, 722-723.
Pursuant to this mandate the trial court set aside the judgment hereinbefore entered, made an additional finding of fact and entered a new judgment on the basis of said additional finding of fact. Therefore appellant is entitled to file a motion for a new trial based upon the additional finding of fact and the judgment entered pursuant thereto and have said matters reviewed by the trial court before certifying the case to this court on appeal.
The application for Writ of Certiorari therefore is denied.
Landis, C.J., Arterburn, Bobbitt and Jackson, JJ., concur.
NOTE. — Reported in 175 N.E.2d 359.