Aetna Securities Co. v. Sickels , 120 Ind. App. 300 ( 1949 )

ON PETITION FOR REHEARING Considering the questions involved to be of sufficient importance, the two divisions of this court sat in banc for the consideration and decision of this appeal. Burns' 1946 Replacement, § 4-202. One judge did not participate in the decision. Three judges joined in the majority opinion and two dissented. The appellant contends that under these circumstances the transfer of this appeal to the Supreme Court for decision is mandatory.

The statute upon which the appellant relies in support of his position is Burns' 1946 Replacement, § 4-209, which reads as follows: "Whenever, upon the determination of any appeal, it shall appear that the three (3) judges of the division do not concur in the result, the case shall be submitted to and be decided by the entire Appellate Court, and, in that case, if four (4) judges shall not concur in the result, the case shall be transferred to the Supreme Court, and the judgment of the Appellate Court in such cases shall be governed in all respects by the law applicable to the judgment of a division."

The appellant construes this statute to mean that whenever and for whatever reason the entire court considers an appeal the concurrence of four judges is necessary to a decision. The term "entire court," he contends, means the court in banc, whether all six judges participate in the decision or not. We can adopt such construction of the statute only by concluding that it repeals, by implication, Burns' 1946 Replacement, § 4-223, which in effect provides that if any judge is disqualified to sit in a case the concurrence of three judges shall be sufficient to decide the same. As far as we are able to learn this precise question has never been decided by the written opinion of either this or the Supreme Court. For indirect light on the subject, however, we cite the holdings in Lesh v. Johnston Furniture Co. (1938),214 Ind. 176, 13 N.E.2d 708, 14 N.E.2d 537; L.S. Ayres Company v. Hicks (1942), 219 Ind. 348, 38 N.E.2d 577.

It is true that the statute upon which the appellant counts is a later enactment than that providing for a decision by three judges and, construed as he advocates, it is repugnant to 9, 10. the latter. Repeals by implication, however, are not favored, State ex rel. Gary v. Lake Sup. Ct. (1947), 225 Ind. 478, 76 N.E.2d 254, and in the absence of a declared purpose that one statute shall repeal another they will be so construed that both may be given effect if reasonably possible. Nash, Trustee v. State ex rel. Adams (1933), 205 Ind. 22, 184 N.E. 169; DeHaven v. Municipal City of SouthBend (1937), 212 Ind. 194, 7 N.E.2d 184; City of Elkhart v.Pribble, Treas. (1937), 212 Ind. 702, 7 N.E.2d 956. This principle of statutory construction compels us to construe the term "entire court" as used in § 4-209 to mean all of the six judges comprising the court. If a case is heard by the "entire court," with the term so construed, the concurrence of four judges is necessary to a decision. If any judge of the "entire court" is disqualified to sit then § 4-223 is applicable and three judges can render an effective decision. Thus the two statutes are reconcilable and both must stand.

In our initial opinion we treated the judgment which the Supreme Court held erroneous in Sickels v. Aetna Securities Co. (1942), 220 Ind. 347, 41 N.E.2d 947, as void and in 11. effect held that its vacation by the trial court, in compliance with the Supreme Court's mandate, was not a condition precedent to the jurisdiction of the trial court to proceed with a retrial of the issues. By our use of the word "void" we do not wish to be understood as holding the judgment in question as void ab initio. We recognize the fact that it was merely an erroneous judgment but when the Supreme Court adjudged it to be contrary to law it became void and thereafter it was as ineffective as a bar to further proceedings as though void in the beginning. Its nullity was not postponed until the trial court went through the mechanics of formally expunging it of record. It is said in Cox v. Pruitt (1865), 25 Ind. 90: "It is claimed that the court below had no jurisdiction to proceed in the cause until the opinion of the Supreme Court reversing the judgment was entered upon the order book of the Circuit Court, and an order made setting aside its proceedings, in accordance with the direction of this court. There is nothing in this objection. . . . The reversal by this court, ex vi termini, vacates the judgment of the court below, without any action of that court. On the filing of the certified opinion of this court in the clerk's office of the Circuit Court, it was the duty of that court to proceed with the cause from the point reached by the judgment of reversal. That court having done its duty, although in an informal manner, committed no error in taking jurisdiction of the cause."

In disposing of the appellant's contention that the judgment of September 27, 1943, was outside the issues as to the appellant we said: "The difficulty with this contention is that the 12. appellant McNair asserted no such grounds for relief below." He charges error in this particular on the ground that a judgment outside the issues is void and that question may be presented for the first time on appeal. When the cause which terminated in the judgment of September 27, 1943, was originally tried, issues were joined on a single paragraph of complaint in which the Sickels group, as plaintiffs, sought to affirm a contract and recover damages caused by fraud in its procurement and, at the same time, sought to rescind said contract and recover the compensation paid. At the insistence of the appellant the plaintiffs were required to elect which of the two inconsistent remedies they would pursue. They chose to proceed upon the theory of rescission. This issue remained unchanged and the judgment of September 27, 1943, is clearly based thereon. It may be that on the theory of rescission the complaint was bad as to the appellant. If so, his remedy was by demurrer. Certainly the judgment against the appellant is not outside the issues merely because it rests upon a bad complaint.

Other questions presented by the petition for a rehearing have been fully discussed in our initial opinion. We are not convinced of error in respect thereto.

Rehearing denied.

Draper, C.J., not participating.

NOTE. — Reported in 90 N.E.2d 136.