Blaemire v. Barnes

Decision Date17 March 1910
Docket Number21,470
Citation91 N.E. 232,173 Ind. 657
PartiesBlaemire et al. v. Barnes et al
CourtIndiana Supreme Court

From Lake Superior Court; Virgil S. Reiter, Judge.

Suit by Isabelle Blaemire and another against Lewis E. Barnes, as trustee of Hobart Township of Lake County and another. From a judgment for defendants, plaintiffs appeal.

Appeal dismissed.

J. H Conroy and Fred Barnett, for appellants.

Bozarth & Bozarth, for appellees.

OPINION

Monks, J.

The court below, after the trial of the cause on its merits rendered judgment on April 30, 1908, at the March term of said court, against appellants, they being the plaintiffs. Appellants filed a motion for a new trial, and at said March term, on May 1, 1908, the court overruled said motion, to which ruling appellants excepted. No time was asked or given in which to file a bill of exceptions at said term of court. At the next term of said court, on May 11, 1908, the same being the first day of said May term, appellants filed a motion in arrest of judgment. At the January term, 1909, of said court, on February 26, 1909, the court below overruled said motion in arrest. Appellants at said time prayed an appeal to this court, and were given sixty days within which to file a bill of exceptions. Afterwards, on April 23, 1909 a bill of exceptions containing the evidence was presented to the judge of said court and signed by him on April 27, and filed in the clerk's office the same day. The transcript in this case was filed in this court on May 26, 1909, more than one year from April 30, 1908, the day the judgment was rendered, and more than one year from May 1, 1908, the day the motion for a new trial was overruled. Under § 672 Burns 1908, § 633 R. S. 1881, appeals to this court from a trial court must be taken within one year from the time the judgment was rendered. It has been held by this court however, under said statute, that when the motion for a new trial is filed after the judgment is rendered, but within the time allowed by law, that an appeal may be taken under said section within one year from the time judgment overruling the motion for a new trial is rendered. New York, etc., R. Co. v. Doane (1886), 105 Ind. 92, 4 N.E. 419; Colchen v. Ninde (1889), 120 Ind. 88, 22 N.E. 94. Other motions will not have the effect of postponing the time for taking the appeal. Ewbank's Manual, § 101; Joyce v. Dickey (1885), 104 Ind. 183, 3 N.E. 252.

It is evident that the motion in arrest of judgment made in this case did not postpone the time for taking the appeal, for the reason that said...

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19 cases
  • Pittsburgh, C., C. & St. L. Ry. Co. v. Johnson
    • United States
    • Indiana Appellate Court
    • January 26, 1911
    ...section within one year from the time judgment overruling the motion for new trial is rendered. Moon, Trustee, v. Cline, supra; Blaemire v. Barnes, 91 N. E. 232;N. Y., etc., Ry. Co. v. Doane, 105 Ind. 92, 4 N. E. 419. In the case of Kinney v. Heuring, supra, the court said: “Appellee moves ......
  • Bryan v. Inspiration Consolidated Copper Co.
    • United States
    • Arizona Supreme Court
    • January 3, 1925
    ... ... when the ruling is had upon such motion." ... To the ... same effect see the following: Blaemire et al. v ... Barnes, 173 Ind. 657, 91 N.E. 232; Willis ... v. Witt (Ky.), 124 S.W. 362; Durbridge v ... State, 117 La. 841, 42 So. 337; Chilcot ... ...
  • Blose v. Myers
    • United States
    • Indiana Appellate Court
    • January 28, 1915
    ...date of the ruling on such motion. Pittsburgh, etc., R. Co. v. Johnson, 49 Ind. App. 126, 131, 93 N. E. 683, 95 N. E. 610;Blaemire v. Barnes, 173 Ind. 657, 91 N. E. 232;New York, etc., R. Co. v. Doane, 105 Ind. 92, 4 N. E. 419. In this case, however, the part of the record before set out di......
  • Blose v. Myers
    • United States
    • Indiana Appellate Court
    • January 28, 1915
    ...such right by filing a motion for new trial. As tending to support this conclusion, see New York, etc., R. Co. v. Doane, supra; Blaemire v. Barnes, supra; Pittsburgh, etc., R. Co. v. supra; Ewbank's Manual § 101. The effect of a motion for new trial, filed too late, is the same as though su......
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