State v. Huebner

¶1DISSENTING OPINION

¶2It seems to me that appellee Huebner by a false pretense did obtain the signature of the judge to a written instrument with intent to defraud the city of Hammond as prohibited by the first offense defined in §10-2103, Burns’ 1942 Replacement. Appellee admits that the fact no money was charged as collected would not prevent the offense from being committed as prohibited by the statute.

¶3The argument that a judgment is not a written instrument in Indiana, and that therefore a finding of facts and conclusions of law thereon, upon which the judgment must be based, is therefore not a written in*473strument, fails to correctly analyze the cases on written instruments in this state.

¶4The early cases after the Revised Statutes of 1852 construed a judgment as a written instrument, and required that a copy thereof be filed with the pleading when it was founded on such instrument. This rule was changed in Lytle v. Lytle (1871), 37 Ind. 281. But a careful examination of this case discloses that this court did not hold a judgment was not a written instrument, but it did hold that it was not a written instrument within the meaning of the statute because it was not such a written instrument that the original could be filed with the pleading. The exact language of Lytle v. Lytle, supra,is set out in the note,1 and *474an examination thereof discloses that the case still holds that a judgment is a written instrument. The case of People v. Rouss (1909), 118 N. Y. S. 433, 438, is in error in assuming that Indiana has held, that a judgment is not a written instrument. Nor has §2-1031, Burns’ 1946 Replacement (the present statute on setting forth written instruments when a pleading is founded thereon) been construed as limited to instruments of trade such as bonds, bills, receipts, promissory notes, drafts or checks. Before the enactment of a special statute (§48-402, Burns’ 1950 Replacement), it was held that a copy of a city ordinance must be set out as a written instrument. Watson’s Works’ Indiana PI. & Pr., §388; 1 Lowe’s Works’ Ind. Practice §12.65, p. 407. And assessments for public ditches are such instruments. “The same is true as to actions to enforce street improvement and other municipal improvement liens, except where otherwise provided by statute.” 1 Lowe’s Works’ Ind. Practice §12.65, p. 408, and authorities cited. The recorded notice of an intention to hold a mechanic’s lien must be pleaded as a written instrument.2 See also 2 Gavit, Ind. PI. & Pr., §233. A special finding of facts and conclusions of law is as much a written instrument as a judgment which must be based thereon and conform thereto. '

¶5*475A judge of a court is a person although he is an official person. The findings and conclusions must be signed by the judge. II Watson’s Works’ Pr. and Forms §1597, pp. 239, 240; 3 Lowe’s Works’ Ind. Practice §53.28, pp. 306, 307; 2 Gavit, Ind. PI. & Pr., §432, p. 2365 and cases therein cited. When they are so made and signed and filed they become the decision of the court under §2-2102, Burns’ 1946 Replacement. It is a judicial act and to be distinguished from the recording of the decision so made or announced. The case of State ex rel. Harp. v. Vanderburgh Circuit Court (1949), 227 Ind. 353, 85 N. E. 2d 254, distinguished between the pronouncement of the decision and the recording of the same. The recording of the same was the signing of the entry of the same where a general finding only was had. There was no special finding involved in the Harp case, supra.

¶6So far as I know it has never been held that any court or the judge thereof is bound by any collusive agreement of both parties, or by any agreement obtained by fraud of one of the parties. It must always be remembered that in this case the city of Hammond is a public corporation, and has no powers except those granted by statute or necessarily implied to carry out express grants of power. The attorney for the city of Hammond could have no greater power. A city attorney is an officer of limited authority the same as the Attorney General. See State ex rel. Young v. Niblack (1951) , 229 Ind. 596, 99 N. E. 2d 839; Davis v. Pelley (1952), 230 Ind. 248, 102 N. E. 2d 910. Neither he nor the city could consent to a fraudulent finding or judgment. For the purposes of determining the correctness of the court’s ruling on the motion to quash the indictment, the special findings and conclusions, as to counsel for the city, were either collusive, or a fraudulent im*476position on him and his client. Either form of this dilemma is fatal to any contention that the court was bound by the fraudulent entry, or that.the accuracy or inaccuracy of the stipulated facts was immaterial to the court.

¶7Stipulations by the parties or their counsel are not enforced by the courts if they are “unreasonable, or in contravention of good morals or of sound public policy.” Continental Casualty Co. v. Lloyd (1905), 165 Ind. 52, 55, 73 N. E. 824. The correct rule has been tersely stated in 50 Am. Jur. 612, §12, as follows: “Thus, it has been said that a court cannot be compelled to stultify itself by solemnly adjudging an absurdity or a falsehood because parties stipulated for such act.” See also 60 C. J. 48 and 60 C. J. 91.3

¶8The argument that the statute on false pretenses should not be construed to cover the acts charged in the indictment because Huebner was guilty of contempt of court is not persuasive. If a litigant in open court should shoot the judge on the bench with the intent to kill and murder him, the offender would still be guilty of an assault and battery with intent to commit a felony even though he was also committing a direct criminal contempt.

¶9As was stated in People v. Rouss (1909), 118 N. Y. S. 433, 440, supra, “Novel circumstances do not require the court to disregard the plain language of the code in a case clearly falling within the code *477provisions.” The fraud charged in the indictment is so rarely attempted that there are few authorities on the subject matter. Such evil and depraved acts are seldom attempted by an attorney, a sworn officer of the court, whose first duty it is to be honest with the court and assist it in doing right and justice. Fraud on the court or judge thereof does not depend upon financial loss to the judge or court. Sanders v. State (1882), 85 Ind. 318. But the evils of such conduct by far transcend the defrauding of widows and orphans, for the very foundation for administering justice between litigants is the court’s ability to ascertain the facts.

¶10Since the state was not a party to the suit to collect on the bonds and coupons, it is not concluded or estopped by any judgment which may have been entered pursuant to the findings and conclusions. The proceedings set out in the indictment do not import absolute verity in the face of the allegations of fraud and deceit and the criminal offense committed against the state in a proceeding to which it was not a party.

¶11Huebner, under the indictment, is charged with intending the natural and probable consequences of his fraudulent act. Bleiweiss v. State (1918), 188 Ind. 184, 189, 119 N. E. 375, 122 N. E. 577; Pitts v. State (1939), 216 Ind. 168, 171, 23 N. E. 2d 673. The natural and probable consequences of the special findings and conclusions would be a judgment upon which Huebner would collect money from the city of Hammond. The indictment charged that Huebner falsely and knowingly prepared the special findings of facts and conclusions of law so that it falsely stated that J. Martin Antrim owned certain bonds in Series 7 and in Series 10, when in truth and in fact he did not own such bonds. By the first conclusion it is stated that the plaintiff should recover nothing on bonds in Series No. 5 and 6 because the plaintiffs did not own bonds in such series. *478Huebner is scarcely in a position now to assert that a false statement of the ownership was not material.

¶12It is not necessary here to decide as to whether a city in this sort of proceeding ought to be subject to a class action in behalf of various unknown owners of bonds. See Kimes v. City of Gary (1946), 224 Ind. 294, 66 N. E. 2d 888. At least it would seem a clever device for preventing the running of the statute of limitations in favor of the city, but in any event the conclusions stated Huebner was to have a judgment for his.services in the matter in the sum of $3,085.08 to be paid Huebner immediately out of city funds upon Huebner issuing his receipt therefor. Huebner’s fees were 30% on the total amount of bonds and coupons for which the city was personally liable. Since the indictment stated that J. Martin Antrim owned no bonds in Series 7 and 10, on the bonds alone, excluding the coupons thereof, Huebner’s attorney’s fees were fraudulently increased in the sum of $1,251.11. It is no answer to say that the fraudulent representations were harmless to the city by reason of the fact that the city would not pay the bondholders until the surrender of the bonds, for Huebner was to be paid his 30 % attorney’s fees immediately, even though the bonds might not be in existence or might never be presented for payment. To state the matter specifically, Huebner by his fraud and deceit upon the court and upon the city of Hammond had a finding and conclusion in his favor for $1,251.11 in excess of his proper fees.

¶13The judgment quashing the indictment should have been reversed.

¶14Note.—Reported in 104 N. E. 2d 385.