Hines v. Driver , 89 Ind. 339 ( 1882 )

Niblack, J.

At the November term, 1881, of the court below, in an action on a promissory note, in which James F. Driver, the appellee, was plaintiff, and William Hines, Jr., and William Hines, Sr., the appellants, were defendants. There was a verdict and judgment against the plaintiff, in favor of the defendant William Hines, Jr., upon a counter-claim filed by him, for the sum of $160.

On the 24th day of August, 1882, the appellee filed in the Hamilton Circuit Court a complaint, setting out the proceedings which resulted in the verdict and judgment against him as above, and demanding a new trial of the cause, upon the ground that he had discovered new and material evidence since the close of the term at which the judgment was rendered.

The appellants answered in general denial, and the issue thus formed was submitted to the court for trial at its November term, 1882. After hearing the evidence, the court made a finding for the plaintiff, and caused a judgment to be entered setting aside the judgment in the original action and granting a new trial in the cause; also ordering the clerk to reinstate the original action upon its docket, so as to make it stand for another trial at its ensuing term.

The appellants have assigned error upon these proceedings, and the appellee has moved to dismiss the appeal for the alleged reason that the judgment herein appealed from is, in legal effect, only an interlocutory order, and not of the class of interlocutory orders from which an appeal may be taken to this court under section 646, R. S. 1881.

In response to that motion, the appellants maintain that the judgment sought,to be reversed is a final judgment within the meaning of section 632, R. S. 1881, supra, and, consequently, a judgment from which an appeal may be prosecuted, as in case of any other final judgment.

Freeman on Judgments says: “ When, in an action to set aside a judgment, the court grants the prayer of the complaint and awards a new trial, the order setting aside the judgment is a final judgment, and as such may be appealed from. The whole scope and object of the suit being to vacate the former judgment, and to procure a new trial, and the issues all being made up for that purpose, their determination necessarily puts an end to the suit.” Section 18.

In the case of McCall v. Hitchcock, 7 Bush, 615, the Court of Appeals, in the State of Kentucky, held that a judgment vacating and setting aside a former judgment, under sections 579 and 581 of the civil code of that State, is final, and subject to appeal and revision in that court.

That case was, in all essential respects, a parallel one to this, and in its. opinion upon a motion to dismiss the appeal upon the same ground as in this case, the court said:

“ It is conceded by the appellee’s counsel that no appeal will, lie, under section 15 of the civil code, from an order granting or refusing a new trial, upon a motion in the same action, made in the usual mode under sections 369, 371, and 372 of the code; but it is contended that the judgment appealed from being the termination of a new and distinct action, litigating the right of the appellee to enforce his judgment. in the previous action, which right was divested by the last judgment, the principles on which judgments or orders made upon ordinary motions for a new trial have been held not to be final have no proper application in this case.

“We regard this distinction as correctly taken. The judgment is not a mere interlocutory order, subject to be set aside by the same court at a subsequent term, nor simply.a ministerial act; nor could it be revised, as an ordinary decision of a motion for a new trial may be, on an appeal from the judgment in the original action; but it is the final adjudication of important rights, litigated in á separate and independent suit, and is tfierefore properly brought before this court by this appeal for revision.”

The case of Belt v. Davis, 1 Cal. 134, holds substantially the same doctrine, and is cited by Freeman, supra, as a leading case on the subject to which it relates.

As we construe them, the following cases decided by this court inferentially sustain the views expressed as above: McKee v. McDonald, 17 Ind. 518; Glidewell v. Daggy, 21 Ind. 95; Huntington v. Drake, 24 Ind. 347; Houston v. Bruner, 39 Ind. 376; Sanders v. Loy, 45 Ind. 229; Hiatt v. Ballinger, 59 Ind. 303; Hill v. Roach, 72 Ind. 57; Kitch v. Oatis, 79 Ind. 96.

The cases of House v. Wright, 22 Ind. 383, and White v. Harney, 23 Ind. 55, support the theory upon which the motion to dismiss this appeal is based; but, in our judgment, those were not well considered cases, and ought not to be followed. They are against the evident weight of authority, and, as has been seen, inconsistent in principle with a long line of other cases'in this court.

The motion to dismiss this appeal is overruled.