Carlson v. Roth

• Decision Date: 06 March 1947
• Docket Number: No. 17577.,17577.
• Citation: 71 N.E.2d 579,117 Ind.App. 272
• Parties: CARLSON v. ROTH et al.
• Court: Indiana Appellate Court

117 Ind.App. 272

71 N.E.2d 579

CARLSON

v.ROTH et al.

No. 17577.

Appellate Court of Indiana, in Banc.

March 6, 1947.

Appeal from Lake Superior Court; Fred A. Egan, Judge.

Action between John W. Carlson, and Maurice Roth and Milton Hicks. From a judgment granting a new trial to Maurice Roth and Milton Hicks, John W. Carlson appeals, and Maurice Roth and Milton Hicks move to dismiss the appeal.

Appeal dismissed.

Davis & Gruenberg, of Gary, for appellant.

Hulbert & Marlatt, of Gary, for appellees.

PER CURIAM.

The appellant recovered judgment below and the appellees' subsequent motion for a new trial was granted. The case is awaiting a second trial below while the appellant seeks a review of the court's action in granting a new trial.

The granting of a new trial puts a case back where it was before trial and supersedes any judgment that may have been rendered therein. The situation is the same as though no trial had ever been had. Compton v. Benham, 1909, 44 Ind.App. 51, 61, 85 N.E. 365;Colchen v. Ninde, 1889, 120 Ind. 88, 22 N.E. 94;Jackson Hill, etc., Co. v. Merchants Heat, etc., Co., 1923, 193 Ind. 422, 140 N.E. 532. Consequently there is no final judgment in this case from which an appeal will lie. Enmeier v. Blaize 1932, 203 Ind. 303, 306, 179 N.E. 783;Gray v. Gray, 1931, 202 Ind. 485, 492, 176 N.E. 105.

If the court erred in sustaining the appellees' motion for a new trial, such error is not available to the appellant until the case is re-tried and a final judgment rendered against him.

Appeal dismissed.