Allen v. Powell
| Citation | 115 N.E. 96,65 Ind.App. 601 |
| Decision Date | 23 February 1917 |
| Docket Number | No. 9523.,9523. |
| Parties | ALLEN et al. v. POWELL. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Johnson County; Wm. E. Deupree, Judge.
Action by Malvina Powell against Oscar N. Allen and others. Decree for complainant, and order overruling motion for new trial, and defendants appeal. Reversed, with instructions to sustain motion for new trial.
Remy & Berryhill, of Indianapolis, for appellants. Bingham & Bingham, of Indianapolis, for appellee.
The appellee brought this action in the superior court of Marion county to quiet her title to lots Nos. 28, 29, 30, 31, 32, 33, 34, 35, and 36 in the Crestline addition to the city of Indianapolis. The complaint is in two paragraphs, the first declaring on a legal title, and the second on an equitable title. The Allens disclaimed. Appellants Clarence H. and Mary E. Beard and Mary J. Glynn answered by general denial. The cause was venued to the Johnson circuit court, where a trial resulted in a verdict and judgment for appellee, quieting her title as prayed. The errors presented and discussed arise on the overruling of the motion for a new trial.
[1] A preliminary matter must be considered: Appellee insists that the motion for a new trial was not filed as required by the statute, and that as a consequence, appellants cannot be heard to complain of the court's action in overruling it. The statute as amended in 1913 governs. Acts 1913, p. 848; section 587, Burns 1914. The statute is in substance that an application for a new trial may be made at any time within 30 days from the time when the verdict is rendered, there being a proviso that if the term of court is adjourned before the expiration of such period, the motion may be filed in the clerk's office within such period, but not afterwards. The facts are as follows: The verdict was returned at the February term, 1914, of the trial court. At the March term and within the 30-day period appellants applied for a new trial in the usual manner by presenting and filing the motion in open court. Appellee contends that notwithstanding that the interim between the two terms had passed, and although court had convened for the March term, appellants were authorized to file the motion only in the clerk's office, and that the presenting and filing of it in open court, it not having theretofore been filed in the clerk's office, was without warrant of law.
Since 1881 and prior to the amendment of 1913, the period of time within which an application for a new trial might be made depended somewhat on the length of the term of court at which the verdict or decision was rendered, and the extent of the vacation immediately subsequent thereto. The duration of the terms of court and of intervening vacations is not uniform in the various circuits or in many instances in the same circuit, certain terms and vacations in any year being longer than others. It resulted under such prior statutes that there was a lack of uniformity in the length of the period within which a party litigant might apply for a new trial. We think it apparent that the legislative purpose that actuated the amendment of 1913 was a reduction of the practice to uniformity in the matter indicated, to the end that litigation might thereby be expedited and moved to its conclusion. Hence the establishing of the 30-day period.
A statute yet in force, and which governs in the ordinary application for a new trial, provides that “the application must be by motion, upon written cause filed at the time of making the motion.” Section 562, R. A. 1881; section 588, Burns 1914. Under such statutes and the statutes in force prior to the amendment of 1913 fixing the time within which an application for a new trial might be made, it was held that a motion for a new trial must be presented to and entered by the court, and that the mere filing of it with the clerk will not be sufficient. Emison, etc., v. Shepard, etc., 121 Ind. 184, 22 N. E. 883;Levey v. Bigelow, 6 Ind. App. 677, 34 N. E. 128. Such statutes authorized an application for a new trial only in term time. It is therefore apparent under such statutes as interpreted that a requirement that the motion be presented to the court deprived a party litigant of none of his rights. But as we have indicated, the amendment of 1913 fixes a definite time limit within which such application must be made, or not at all. Under the amendment, all the 30-day period is available. But the whole or a substantial part of the period may fall in vacation. Under such circumstances to require that the motion be presented to the court would in some instances entirely and in other instances very materially limit the rights of a party desiring to move for a new trial, as otherwise fixed by the amendment, and hence the necessity for the provision that if the term of court has adjourned before the expiration of the 30-day period, the motion may be filed in the clerk's office within such period. The 30-day period may be entirely included in the term at which the verdict or decision is rendered, or it may extend into the succeeding vacation, or it may reach across such vacation into the succeeding term. The proviso of the amendment does not purport to apply to the first case. Literally, such proviso may be broad enough to cover the second and third cases. Such a broad interpretation, however, is not necessary in order that full effect may be given to the evident legislative purpose that all the 30-day period be available to the party moving for a new trial. Where all the period limited comes within the term at which the verdict or decision is rendered, the application should be made to the court. Where a part of such period extends into the succeeding vacation, the application if made at such term should be made to the court; if made in that part of the period that falls in vacation, the motion may be filed in the clerk's office as specified by the amendment. If the 30-day period extends into the succeeding term, the application if made at such term, but within such period, should be made to the court. Such a holding gives full effect to the amendment of 1913, construed in the light of the legislative purpose that gave rise to it, and also gives effect to section 588, supra, as construed by the courts, modifying it only to the extent necessary to carry out such legislative purpose. It follows that the application for a new trial here was made in the proper manner, and that the ruling on the motion is before us for review.
An understanding of the questions presented and discussed under the motion for a new trial necessitates a statement of the facts. The material part of the evidence is substantially as follows:
On and prior to July 21, 1913, appellee was the owner of the lots described in the complaint. July 22, 1913, an instrument purporting to have been signed and acknowledged by appellee, and purporting also to convey the lots from appellee to Crawford, was recorded in the recorder's office of Marion county. Such instrument is the deed hereinafter described as having been signed and acknowledged by appellee in blank as to the grantee. The evidence respecting the subsequent apparent conveyances of the lots as disclosed by the deeds of record in the recorder's office consisted of an agreed stipulation at the trial not entirely clear in its provisions, but to the following effect: July 28, 1913, recorded July 29, 1913, Crawford to Allen, all the lots. August 26, 1913, recorded August 27, 1913, Allen and Mary N. Allen, his wife, to Beard, all the lots. August 30, 1913, recorded September 4, 1913, Beard and Mary E. Beard, his wife, to Mary J. Glynn, describing part of the real estate in controversy. August 30, 1913, recorded September 5, 1913, Beard and wife to Josephine Fickle, lot 31. Appellee commenced this action September 6, 1913, and on that day duly filed lis pendens notice. The stipulated agreement respecting apparent conveyances and the proceedings affecting the lots subsequent to September 6, 1913, was in substance as follows: September 23, 1913, recorded November 6, 1913, Beard and wife to Harry C. Gauker, lots 32, 33, 34, 35, and 36. September 10, 1913, Mary E. Beard commenced an action against Gauker and wife to establish and foreclose a purchase-money lien against the lots last named, and duly filed a lis pendens notice. Fickle and the Gaukers were not made parties to this proceeding. The evidence, at least inferentially, establishes that no one actually occupied the lots, and that actual possession did not follow any of the conveyances.
Appellee lived at Newcastle. Crawford maintained an office at Indianapolis, where he was doing business as the Crawford Land Company. Appellee was not acquainted with him. Through an advertisement, she got into communication with him, resulting in his informing her by letter that he had a purchaser for the lots at $8,000. By arrangement with him, she came to his office July 21, 1913, for the purpose of consummating the sale and conveyance of the lots to the unknown purchaser. Prior thereto, by direction of Crawford, she had caused abstracts of title to the lots to be brought down to date. She also caused a warranty deed, blank as to the grantee, to be prepared, and signed and acknowledged it. Arriving at Crawford's office, she introduced herself, and delivered the abstracts to him. Crawford said he would have to send them to Chicago for examination, and directed her to return on Friday the 25th of July. Appellee testified that at Crawford's request she took the deed from a small hand satchel in which she was carrying it, and handed it to him for examination. After inspecting it, he returned it to her, and she placed it in the satchel. She testified to circumstances affording Crawford an opportunity surreptitiously to take the deed from the satchel. When she left the office she carried the satchel with her, believing, as she testified,...
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