Calumet Teaming & Trucking Co. v. Young

• Decision Date: 02 May 1941
• Docket Number: 27509.
• Court: Indiana Supreme Court
• Parties: CALUMET TEAMING & TRUCKING CO. v. YOUNG.

33 N.E.2d 583

218 Ind. 468

CALUMET TEAMING & TRUCKING CO. v. YOUNG.

No. 27509.

Supreme Court of Indiana

May 2, 1941

Appeal from Superior Court, Lake County; John F Cody, special judge.

Stiles & Reynolds, of Gary, for appellant.

Gavit & Richardson, of Gary, for appellee.

FANSLER Judge.

In his petition for rehearing the appellee again calls attention to Hornady, Adm'r v. Shields, 1889 119 Ind. 201, 21 N.E. 554, and Hoppes et al. v. Hoppes et al., 1890, 123 Ind. 397, 24 N.E. 139, and says that the views expressed in the principal opinion are inconsistent with the language of those cases.

The Hornady case is an appeal from a judgment in an action for replevin. It appears from the opinion that after the first judgment in the replevin suit the defendant brought an action to review and reverse the judgment for errors of law appearing in the record, and in this action the judgment was reversed and a new trial ordered in the original case. Thereafter the replevin suit was tried again, and there was a second judgment, from which the appeal was taken. There was no appeal from the action to review. On the appeal from the replevin action the appellant assigned error in relation to the entering of the judgment in the suit to review for error upon the ground that the complaint for review did not show any error of law appearing in the proceedings which resulted in the original judgment in replevin. The court's attention does not seem to have been called to the fact that error in the action to review could only be assigned upon an appeal from the final judgment granting the review. In the opinion the asserted error is considered upon its merits, and it is held that there was no error. There is a discussion of the procedure applicable to actions to review for error and to actions for review because of material new matter. In the course of the opinion the action to review for error is said to be comparable to a motion for a new trial. It is then said (page 205 of 119 Ind., page 555 of 21 N.E.): 'This court will not reverse a case on account of the action of the lower court in granting a new trial, unless it is apparent that great injustice has been done.' Speaking of the action for review, it is said (pages 205, 206 of 119 Ind., page 555 of 21 N.E.): 'In this case there was a hearing of the cause on the complaint, and issue joined, a new trial granted, and the cause again submitted to the court. No demurrer was filed to the complaint; no exceptions were taken and reserved in the hearing of the cause of review; no objection is made to the finding of the court, or the order or judgment setting aside the original judgment and granting a new trial; and in this court for the first time an objection to the complaint is made. There does not appear from the record to have been any injustice done in reviewing the judgment and granting a new trial.' It is clear that the sufficiency of the complaint in the action to review could not be first questioned on appeal, and it is also clear that no error in the action to review was made to appear. The last sentence therefore, to the effect that it does not appear that any injustice was done, is mere surplusage and obiter dictum.

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