Geisen v. Reder

Hackney, C. J. The record in this case brings up no pleadings, although it is certified as containing “true and complete copies of all the papers and entries in said cause.” The bill of exceptions contains the following, by an attorney for the plaintiff: “This case, your honor, started out at first as an action for the dissolution of a partnership and an accounting, and for a receiver to make sale of the firm's property. During the pendency of the action the matters in [530] controversy between tbe parties have been settled by written agreements, and the interest of Mr. Geisen is sold to Mr. Heder; and, after these agreements or settlements bad been made, a question arose upon one of them; and, in order to save a new action, we agreed that just in tbe pending case, as it stands, tbe .matter in controversy as to tbe effect of this stipulation or settlement or sale between the parties should be determined by tbe court.” Immediately an attorney for tbe defendant said: “I suppose it is agreed by tbe parties to this action that tbe statements •above made by plaintiff’s counsel are tbe facts in tbe case, and that they shall stand as tbe statement of facts.” Continuing tbe bill recites that “it was so agreed , and admitted by both parties in open court that tbe statements above made shall be tbe facts in tbe case.” Thereupon two documents are shown to have been read in evidence, tbe second of which contained tbe statement, signed by one of tbe parties only, that “tbe dispute concerning tbe meaning of the first contract * * . * shall be submitted to, and decided by tbe court in tbe pending case.” Additional evidence upon disputed questions was beard and certified in tbe bill. These' statements indicate a purpose to submit tbe controversy as an agreed case, but they are far from sufficient to constitute an agreed case, as tbe same is provided for by tbe code. Section 553, Horner’s R. S. 1897. Tbe provision is that “parties shall have the right in all cases, either with or without process, by agreement to that effect, to submit any matter of controversy between them to any court that would otherwise have jurisdiction of such cause, upon an agreed statement of facts, to be made out and signed by tbe parties; but it must appear by affidavit that tbe controversy is real and tbe proceedings in good faith, to [531] determine the rights of the parties; whereupon the court shall proceed to try the same, and render judgment as in other cases.” The affidavit referred to in this provision is jurisdictional, and without it no case would be presented. City of Shelbyville v. Phillips, 149 Ind. 552; Thornton’s Annotated Code, section 553, and note; 1 Ency. Pl. & Pr., p. 388. The practice requires also an exception to the court’s conclusion or decision. City of Shelbyville v. Phillips, supra. There having been no affidavit, no agreed statement of facts signed by the parties, and no exception to the decision, essential elements of an agreed case are lacking. The principal questions urged for decision relate to the admissibility of evidence. Such questions do not arise upon an agreed case, the primary feature of which is to invite a decision upon facts not controverted, but fully agreed upon and presented as the basis for a conclusion of law. The questions urged were sought to be saved by a motion for a new trial, a method relating to trials upon issues formed and presented by evidence, rather than abstract statements of facts. The action of the trial court in admitting evidence and granting exceptions to its admissibilty seemed to proceed upon the theory of a controverted rather than an agreed case. Such action, however, presents no question for review without the pleadings which define the issues and determine the limits within which the evidence must be confined. Reid v. Reid, 149 Ind. 274; Marsh v. Bower, ante, 356. The case does not, therefore, present by proper procedure any question for decision. The burden rested upon the appellant to bring to this court a record disclosing error, and, having failed to do so, we must presume in favor of the court’s action. If the record is correct in disclosing no pleadings, [532] the appellant, as plaintiff below, presented no cause for relief, and the court’s action in denying him relief, although by the irregular method of a trial, reached the proper result. By either of the only two possible methods of presenting the questions below the appellant should fail. The judgment is affirmed.