Lawrence v. Pennsylvania Railroad Co.

130 Ind. App. 18 (1960) 168 N.E.2d 74

LAWRENCE
v.
PENNSYLVANIA RAILROAD COMPANY

No. 19,386.

Court of Appeals of Indiana.

Filed July 1, 1960.

Jack H. Mankin and Johnston & Mankin, of Terre Haute, for appellant.

William A. Wick, Carl T. Reis, George C. Forrey, III, Edward B. Raub Jr., Jacob S. White, all of Indianapolis, and Thomas H. Hicks, of Terre Haute, for appellee.

Reporter's Note. — This case appears out of chronological order.

Consideration of appeal suspended. By the court in banc.

BIERLY, C.J.

This is an action for money damages instituted in the Superior Court of Vigo County No. Two by the appellant against the appellees, Pennsylvania Railroad and S.A. Leidel. Plaintiff refused to plead over following ruling of the court on defendant's motion addressed to plaintiff's first paragraph of amended complaint, whereupon on motion by defendants, the court rendered judgment for the defendants on said paragraph of complaint that plaintiff take nothing thereby.

Trial was by a jury upon issues formed by the second paragraph of plaintiff's amended complaint against defendant, Pennsylvania Railroad Company, and defendant's answer thereto. The jury returned a verdict for the defendant. The appellant thereupon filed a motion for a new trial which the court overruled. In due course, this appeal was perfected and transcript and assignment of errors filed February 23, 1960.

The transcript discloses no judgment on such verdict, and it is certified as being a true and correct copy of the record, hence we assume there was no judgment entered.

The 1958 Revision of the Supreme Court Rule 2-3 provides:

"No appeal will be dismissed as of right because the case was not finally disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, suspend consideration until disposition is made of such issues...."

By virtue of this ruling, we have concluded to and do now suspend consideration of this appeal until such time as the Superior Court of Vigo County No. Two finally disposes of the issues involved in this case by the entry of an appropriate judgment on the verdict of the jury.

The Clerk of the Vigo Circuit Court, ex-officio Clerk of Superior Court of Vigo County No. Two is hereby ordered to certify a copy of such judgment, when entered, to the Clerk of this Court, and the same is hereby ordered thereupon to become a part of the transcript of the record heretofore filed in this appeal. Ax v. Schloot (1945), 116 Ind. App. 303, 64 N.E.2d 31.

NOTE. — Reported in 168 N.E.2d 74.