subdivision rule in Indiana

1983Except as provided in subsection (1) of this subdivision of the rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." (Our emphasis) In response, the governmental entities and the officers sought to have the May 5 dismissal set aside and gain the inevitable judgment which in turn could be used as a bar to the continued action against the officers under Ind. Code 34-4-16.5-5(a) and Bolerjack, supra .

1983Exeept as provided in subsection (1) of this subdivision of the rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." (Our emphasis) In response, the governmental entities and the officers sought to have the May 5 dismissal set aside and gain the inevitable judgment which in turn could be used as a bar to the continued action against the officers under Ind.Code 34-4-16.5-5(a) and Bolerjack, supra. They were successful, and the trial court vacated the dismissal against the city and state.

2025Except as provided in subsection (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. for visitation sufficed to make them a part of the case such that Mother could not voluntarily dismiss the action without a court order[.]”), trans. denied. [16] Pursuant to Indiana Trial Rule 41(A)(2), the Trial Court may enter an order dismissing the Adoption Petition at Stepfather’s request “upon such terms and conditions as the court deems proper.” “The purpose of this r

1997Id. at 1273 .

1997T.R. 41(A)(2) states in pertinent part: “Except as provided in subsection (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper....” In Highland Realty v. Airport Authority, 563 N.E.2d 1271 (Ind.1990), our supreme court concluded that the “terms and conditions” for dismissal under T.R. 41(A)(2) may include the payment of attorney’s fees to assure that a dismissal does not prejudice or unfairly inconvenience the defendant.

1980However, TR. 52(D) now provides that "[t]he court's failure to find upon a material issue upon which a finding of fact is required by this subdivision or this rule shall not be resolved by any presumption *441 and may be challenged under subdivision (B) of this rule; ..." See also Daly v. Nau (1975), Ind. App., 339 N.E.2d 71 .

1980However, TR. 52(D) now provides that “[t]he court’s failure to find upon a material issue upon which a finding of fact is required by this subdivision or this rule shall not be resolved by any presumption and may be challenged under subdivision (B) of this rule; . . . ” See also Daly v. Nau (1975), Ind.App., 339 N.E.2d 71 .

1977NOTES [1] Ind. Code § 32-11-1-1 et seq. [2] Ind. Code § 32-11-1-10 reads: The costs of the proceedings shall be paid by the plaintiff, except that in case of contest, the additional costs thereby caused shall be paid as the court shall adjudge. [3] Ind. Code § 32-11-1-8 reads: ... the court may make such further orders, and render such findings and judgments as may seem just.... [4] TR. 41(A)(2) reads: Except as provided in subsection (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and condition

1977NOTES [1] Ind. Code § 32-11-1-1 et seq. [2] Ind. Code § 32-11-1-10 reads: The costs of the proceedings shall be paid by the plaintiff, except that in case of contest, the additional costs thereby caused shall be paid as the court shall adjudge. [3] Ind. Code § 32-11-1-8 reads: ... the court may make such further orders, and render such findings and judgments as may seem just.... [4] TR. 41(A)(2) reads: Except as provided in subsection (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and condition

1977NOTES [1] Ind. Code § 32-11-1-1 et seq. [2] Ind. Code § 32-11-1-10 reads: The costs of the proceedings shall be paid by the plaintiff, except that in case of contest, the additional costs thereby caused shall be paid as the court shall adjudge. [3] Ind. Code § 32-11-1-8 reads: ... the court may make such further orders, and render such findings and judgments as may seem just.... [4] TR. 41(A)(2) reads: Except as provided in subsection (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and condition

1977Co., 186 F.2d 473 (C.A.4 1951); 6 J.

1977NOTES [1] Ind. Code § 32-11-1-1 et seq. [2] Ind. Code § 32-11-1-10 reads: The costs of the proceedings shall be paid by the plaintiff, except that in case of contest, the additional costs thereby caused shall be paid as the court shall adjudge. [3] Ind. Code § 32-11-1-8 reads: ... the court may make such further orders, and render such findings and judgments as may seem just.... [4] TR. 41(A)(2) reads: Except as provided in subsection (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and condition

1905The subdivision of the rule above referred to, after providing the character of the statement of the evidence which appellant shall prepare where the sufficiency of the evidence to sustain the verdict or finding is sought to be drawn in question, contains the following: “The statement will be taken to be accurate and sufficient for a full understanding of the questions presented for decision unless the opposite party in his brief shall make necessary corrections or additions.” In McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557 , this court stated that said rule “exacts of the appellee the