
    No. 16,218.
    Crafton et al. v. Mitchell et al.
    Dismissal of Action. — When Action May he Dismissed. — Oral Announcement of what Special Findings will he. — Effect on Dismissal. — Where the court states what the special finding in a case will be when written, such announcement is not the decision of the court, and, notwithstanding such announcement, the case may be dismissed any time before the written finding is announced.
    From the Monroe Circuit Court.
    
      H. C. Duncan and I. C. Batman, for appellants.
    
      J. H. Louden and W. P. Rogers, for appellees.
   Hackney, J.

The record presents an assignment of four alleged errors, the fourth of which is that “the court erred in sustaining the appellees’ motion to dismiss the cause of action.”. We will notice no other assignment. The bill of exceptions discloses that this cause and another of a similar nature, but between different parties, were pending for trial. It was agreed that both causes should be tried by the court, and that a special finding should be made in each cause, upon the evidence introduced in the causes as tried together.

In such other cause, the court prepared and announced its special finding of facts and conclusions of law therefrom, and, after reading such finding, stated that the finding in this cause had not been written, but that it would be just such a finding as that made, excepting in the names of the parties and the description of the lands. At a subsequent sitting of the court, and before further steps were taken in this cause, the plaintiffs, appellees here, moved to dismiss their action, and, over the objection of the appellants, the court sustained said motion, and dismissed said action.

Filed April 21, 1893.

Appellants’ counsel concede the question to depend upon the ruling as to whether the remark of the court as to what the special finding in this case would be when written was the announcement of the court’s decision of the cause.

It has often been decided that after the trial court announces its decision, the action can not be dismissed to defeat a judgment. But we do not believe that a special finding can be announced in advance of its preparation. It does not consist of any oral statement of the judge. Section 551, R. S. 1881.

This question was decided by this court against the contention of the appellants here in the case of Mitchell v. Friedley, 126 Ind. 545. There the court announced a general finding when a special finding had been requested; the general finding therefore was recalled. Thereupon the cross-complainant moved to dismiss his cross-complaint, and the motion was denied. This was held to be erroneous.

If the action is dismissed, we need not consider the sufficiency of the complaint, nor do. we stop to inquire whether the appellants have pursued the proper practice in presenting their appeal.

The judgment of the lower court is affirmed.  