Opinion
No. 14,107.
Filed December 5, 1930. Rehearing denied June 17, 1931. Transfer denied July 17, 1931.
1. APPEALS — Final Judgment from which Appeal can be Taken — Sustaining Motion to Dismiss Action. — An order sustaining a motion to dismiss an action constitutes a final judgment from which an appeal can be taken (§ 695 Burns 1926). p. 706.
2. SPECIAL FINDINGS — How Authenticated — Judge's Signature or Bill of Exceptions Necessary. — A special finding should be signed by the judge as an evidence of its genuineness or incorporated in a bill of exceptions signed [or approved] by the judge. p. 707.
3. DISMISSAL OF ACTION — Order of Dismissal — After Filing of Special Finding — Held Error. — Under the express provision of the statute (§ 354 Burns 1926), the voluntary dismissal of an action can only be made "before the finding of the court is announced," and an order sustaining plaintiffs' motion to dismiss their case after the judge had made an entry on the court's docket stating that the court had filed his special finding of facts, as requested by the parties, was error. p. 707.
From Porter Superior Court; Harry L. Crumpacker, Judge.
Action by William S. Hutton and others against Frank B. Wall and others. From an order of the court dismissing the action on motion of the plaintiffs, the defendants appealed. Reversed. By the court in banc.
Bomberger, Peters Morthland, Glenn D. Peters and Abe Ottenheimer, for appellants.
William J. Whinery, for appellees.
This is an appeal from the action of the court in sustaining appellees' motion to dismiss their case.
It appears by a special bill of exceptions, which is signed and properly made a part of the record, that on March 3, 1930, before the regular session of court for that day was convened, the judge of the court announced to the parties and their respective counsel that he had prepared his special findings of fact as requested by the parties, and suggested that counsel and himself retire to his chambers where the special findings of fact might be discussed by the parties concerned. Thereupon, such counsel and the judge retired to the judge's chambers, and there they informally discussed the findings of fact, the same being made a part of the bill of exceptions. At the termination of the discussion, the judge delivered to each of counsel a copy of his special findings, and subsequently, after the formal convening of the court, made the following entry in the docket of the court: "3/3/30. Court files special findings of fact."
On March 5, 1930, appellees filed their motion to dismiss the case without prejudice, and the court stated: "Which motion is by the court sustained and the cause dismissed, and to which ruling of the court, the defendants except." We hold that this was an order of dismissal, which, in effect, was a final judgment.
Appellees have filed their motion to dismiss the appeal, contending that the ruling of the court sustaining appellees' motion to dismiss the case is not a final judgment from 1. which an appeal will lie. But this court, in McGraw v. Nickey (1911), 47 Ind. App. 159, 93 N.E. 1003, has held otherwise, and now so holds. The motion to dismiss is overruled.
Appellees call attention to the fact that the special findings of fact are not signed by the court, and that no conclusions of law are stated, and then contend that the findings amount 2. to a general finding. The statute does not provide that special findings must be signed by the court, but, in Peoria, etc., Ins. Co. v. Walser (1864), 22 Ind. 73, it was held that as an evidence of its genuineness to an appellate court, it should be signed by the court or incorporated in a bill of exceptions signed by the judge. See Winstandley v. Breyfogle (1897), 148 Ind. 618, 48 N.E. 224; Coffinberry v. McClellan (1905), 164 Ind. 131, 73 N.E. 97; Massachusetts, etc., Ins. Co. v. Indiana State Bank (1921), 76 Ind. App. 608, 132 N.E. 693; Ferris v. Udell (1894), 139 Ind. 579, 38 N.E. 180.
The special findings herein were made a part of the bill of exceptions duly signed by the court. We do not see, however, that, even if the findings were general instead of special, the announcement thereof would not have the same effect as if they were special.
It is further contended that there was no announcement of the findings at the time of the dismissal by appellees, but it appears that the court, on March 3, 1930, entered upon its 3. docket, "3/3/30. Court files special findings of fact," and that the attempted motion to dismiss was not filed until two days thereafter. In Walker v. Heller (1877), 56 Ind. 298, it is held that an entry in a cause made in the proper orderbook, which is a public record, by direction of the court, finding in favor of one defendant generally, and for the plaintiff against another defendant, is such a finding as will preclude a dismissal of the case. In this case, the entry was made by the judge himself upon the court's docket, which is a public record.
The court erred in sustaining appellees' motion to dismiss their case.
Judgment reversed.