Chicago Terminal Transfer Railroad Company v. Walton, By Next Friend

• Decision Date: 07 June 1905
• Docket Number: 20,515
• Citation: 74 N.E. 988,165 Ind. 642
• Parties: Chicago Terminal Transfer Railroad Company v. Walton, by Next Friend
• Court: Indiana Supreme Court

74 N.E. 988

165 Ind. 642

Chicago Terminal Transfer Railroad Company v. Walton, by Next Friend

No. 20,515

Supreme Court of Indiana

June 7, 1905

Rehearing Denied December 13, 1905.

From Laporte Superior Court; Harry B. Tuthill, Judge.

Action by John S. Walton, by his next friend, against the Chicago Terminal Transfer Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Jesse B. Barton and John B. Peterson, for appellant.

Crumpacker & Moran, for appellee.

Jordan J. Gillett, J., did not participate in this decision.

OPINION

Jordan, J.

John S. Walton, an infant, commenced this action by his next friend, John W. Walton, in the Lake Superior Court. The cause was subsequently taken on change of venue to the Laporte Superior Court. The action is to recover damages for personal injuries on account of the alleged negligence of appellant. The case was tried in the Laporte Superior Court by a struck jury, and a verdict for $ 8,500 returned in favor of appellee. On May 4, 1903, the court rendered judgment on this verdict. Appellant filed a motion for a new trial, which motion was overruled on September 21, 1903, and a transcript of the record in this appeal was filed in the Appellate Court on December 11, 1903.

The alleged errors relied upon for a reversal are based (1 and 2) on overruling appellant's demurrer to the first and second paragraphs of appellee's amended complaint; (3) in denying the motion for a new trial.

At the very threshold, opposing counsel, in their brief, raise the question that the first and second assignments of error, by which it is specifically alleged that the Laporte Superior Court erred in overruling the demurrer to the first and second paragraphs, respectively, of the amended complaint, are not sustained by the record, for the reason that it is disclosed therein that the demurrer to the first and second paragraphs of the amended complaint was overruled by the Lake Superior Court, and not by the Laporte Superior Court. This contention is fully verified by the record. No such ruling on demurrer as is specifically attributed to the Laporte Superior Court by the assignment of errors is shown by the transcript on file in this appeal. Consequently, the point made by appellee's counsel, that the first and second assignments do not present for review the decision of the Lake Superior Court in overruling appellant's demurrer to the first and second paragraphs of the amended complaint, is well taken. Indiana, etc., R. Co. v. McBroom (1884), 98 Ind. 167, and cases cited; Smith v. Smith (1886), 106 Ind. 43, 5 N.E. 411; Evansville, etc., R. Co. v. Lavender (1893), 7 Ind.App. 655, 34 N.E. 109; Baldwin v. Sutton (1897), 148 Ind. 591, 47 N.E. 629, and cases cited; Elliott, App. Proc., § 306; Ewbank's Manual, § 127. If appellant had not specifically limited or confined the rulings on the demurrer to the Laporte Superior Court, a different question would be presented. McKeen v. Porter (1893), 134 Ind. 483, 34 N.E. 223. It must follow, under the rule so firmly settled by the above authorities, that the ruling of the Lake Superior Court on the demurrer to the complaint is not presented for our consideration.

In order to obviate the deficiency in the assignment of errors, appellant on November 2, 1904, filed an application asking the court to grant it leave to amend its assignment, setting forth in the application, as an excuse for not making and filing a proper assignment in the first instance, the verified facts that its attorney who had charge of the appeal was busily engaged in court in the trial of other causes, and the further fact that the record in the cause is voluminous, and that by reason thereof, through inadvertence, it overlooked the fact that the rulings on the demurrer to the amended complaint were made by the Lake Superior Court instead of the Laporte Superior Court. The application is opposed, and the facts therein stated are controverted by counsel for appellee. An examination of the record discloses that the application to amend was made more than a month after the statutory limit for taking an appeal in the case had expired. Under these circumstances, the question presented to be determined by the court is not one of excusable neglect on the part of appellant in not making and filing a proper assignment within the year allowed for appealing the case, but it is one in regard to the right and power of this court to grant appellant leave to make a material amendment or alteration in its assignment of errors, and then refile the pleading as amended after the expiration of the statutory limit. In each of the following cases this court held that an assignment of errors in a case on appeal must be made and filed within the year limited by statute for taking appeals: Bacon v. Withrow (1887), 110 Ind. 94, 10 N.E. 624; Lawrence v. Wood (1890), 122 Ind. 452, 24 N.E. 159; Smythe v. Boswell (1889), 117 Ind. 365, 20 N.E. 263. In the latter case the court said: "An appeal must be perfected within the time limited by the statute. * * * The limitation operates primarily upon the parties, but it also binds the court, because it is a rule of procedure established by valid legislation. Our decisions are, therefore, right in holding that an appeal must be taken within the time limited by the statute, and that, unless the transcript and the assignment of errors are filed within that time, there is no cause in this court."

The...