Baltimore & Ohio Railroad Company v. Ray
| Citation | 73 N.E. 942,36 Ind.App. 430 |
| Decision Date | 30 March 1905 |
| Docket Number | 5,151 |
| Court | Indiana Appellate Court |
| Parties | BALTIMORE & OHIO RAILROAD COMPANY v. RAY |
Rehearing denied June 6, 1905.
Transfer denied November 1, 1905.
From Dekalb Circuit Court; Joseph W. Adair, Special Judge.
Action by Emma Ray against the Baltimore & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals.
Reversed.
James E. Rose, Calhoun, Lyford & Sheehan and Charles D. Clark for appellant.
Mountz & Brinkerhoff, for appellee.
This is an action by appellee to recover benefits claimed to be due her through the membership of her husband in his lifetime in appellant's relief department. A trial by the court upon issues formed resulted in a judgment in appellee's favor. The questions presented in the argument are those arising under the motion for a new trial.
It is first argued that the evidence is not in the record. The judgment was rendered November 5, 1903. The transcript was filed in this court February 8, 1904. The original bill of exceptions is incorporated into the transcript, and under section seven of the civil practice act of March, 1903 (Acts 1903, p. 338, § 641g Burns 1905), we think it clear that we must consider it a part of the record. That section provides: "That in case an original bill of exceptions shall be incorporated into the transcript of the record of any cause on appeal to the Supreme Court or the Appellate Court, such original bill of exceptions shall, in every case, constitute and be considered as a part of such transcript, the same as if copied therein by the clerk, whether such original bill or a copy thereof be specified in the precipe, or otherwise directed to be incorporated into such transcript." The precipe calls for the bill of exceptions containing the evidence, and the transcript contains the original bill. There is some doubt whether the precipe calls for the original bill or a transcript of the original bill, but, resolving the doubt either way, the original bill which is in the transcript must be, under the above statute, considered a part of the record.
On November 5, 1903, the twenty-eighth day of the October term, 1903, the court rendered its decision, and a motion by appellant for a new trial was overruled, and judgment rendered. Afterwards, on December 18, 1903, "the same being the eleventh day of the adjourned October term, 1903, or the forty-seventh day of the regular October term, 1903," appellant asked, and, over appellee's objection, was granted leave to correct the motion for a new trial, and was permitted to file a corrected and supplemental motion for a new trial, which supplemental and corrected motion was overruled.
There is nothing in the statute that prohibits the filing of a second motion for a new trial. Whether such motion should be filed would rest largely in the discretion of the trial court. Dennis v. State (1885), 103 Ind. 142, 2 N.E. 349. It does not appear that there was any abuse of discretion. What showing was made does not appear, but we must presume in favor of the action of the court. The motion was filed over appellee's objection, but no cross-errors have been assigned. The question remains, however, whether it could be filed at the time it was filed.
Section 570 Burns 1901, § 561 R. S. 1881, provides: "The application for a new trial may be made at any time during the term at which the verdict or decision is rendered; and if the verdict or decision be rendered on the last day of the session of any court, or on the last day of any term, then, on the first day of the next term of such court, whether general, special or adjourned." Section 1443 Burns 1901, § 1380 R. S. 1881, provides: "When the business pending in any of the courts of this State shall remain undisposed of at the close of any term of court, the judge may adjourn the court to any other time in vacation (of which notice shall be published in some newspaper of general circulation in the county), and at such adjourned time proceed with the business of the court, as a part of the regular term of said court at which the adjournment was ordered; and all parties, witnesses, jurors and officers shall attend as they were required to do at the regular term." Section 1386 Burns 1901, § 1334 R. S. 1881, provides for holding special terms of court. The record discloses that the term at which the motion for a new trial was filed was an adjourned term, and seems to have been considered a continuation of the regular October term. As nothing to the contrary appears, it is presumed that the adjourned term was legally held. Wood v. Franklin (1884), 97 Ind. 117; Lewis v. Albertson (1899), 23 Ind.App. 147, 53 N.E. 1071.
Construing §§ 570, 1443, supra, together, upon the authority of Rudolph v. Landwerlen (1893), 92 Ind. 34, 41, it must be held in the case at bar that the motion for a new trial must be regarded as if filed at the regular term at which the finding of the court was announced. It is held in that case that the statute makes the adjourned term a part of the regular term at which the adjournment was ordered, and that a motion for a new trial, filed during the adjourned term, where the finding was made at the regular term, is filed in time. See, also, Smith v. Smith (1861), 17 Ind. 75; Casily v. State (1869), 32 Ind. 62; Knight v. State (1880), 70 Ind. 375.
In McIntosh v. Zaring (1898), 150 Ind. 301, 49 N.E. 164, cited by counsel for appellee, a judgment was rendered on the last day of the term, a motion for a new trial was not made until the first day of the next regular term, and it was held the motion was too late, as a special term had been held in the meantime.
Appellee's husband, Robert Ray, in October, 1889, entered appellant's employ as a locomotive fireman, and became a member of the relief department. In his application for membership in the relief department--which application he agreed, when accepted by the superintendent, which was done, should constitute a contract between him and the company--he agreed, among other things, that the bringing of a suit against the company for damages, by reason of his injury or death, by "any beneficiary or legal representative, or for the use of any beneficiary alone or with others, or the payment by any of the companies aforesaid of damages for such injury or death, recovered in any suit or determined by compromise, or of any costs incurred therein," should "operate as a release in full to the relief department of all claims by reason of any membership therein." The application and acceptance, with the regulations of the relief department, constitute the contract upon which this action is brought. On February 29, 1896, while Ray was still in the employ of the appellant, the United States Circuit Court appointed receivers, who took charge of the railroad company's property, and, under the direction of the court, continued the operation of the relief department. Ray was employed by the receivers, and continued in their employ until his death, April 26, 1899. At his death, he left surviving him the appellee (his widow) and two children.
Appellee was appointed administratrix of her husband's estate, and as such, in June, 1899, filed an intervening petition in the receivership case, asking that she might intervene as administratrix for the benefit of the children, and that she be permitted to wage the suit in such capacity for their benefit, and not otherwise. In the proceedings then had the court found that appellee was administratrix of her husband's estate, "in which capacity she intervenes herein for the benefit of the widow and children of said Robert M. Ray." The court also found that the widow and next of kin were damaged in the sum of $ 7,500, for which amount judgment was rendered. This amount, with interest, was afterward paid to the administratrix.
It is not necessary to inquire whether the appointment of the receivers terminated the contract of employment Ray had with the appellant company, for the reason that it is...
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