Emison v. Shepard
| Decision Date | 25 November 1889 |
| Docket Number | 15,225 |
| Citation | 22 N.E. 883,121 Ind. 184 |
| Parties | Emison, Trustee, v. Shepard, Administrator |
| Court | Indiana Supreme Court |
From the Knox Circuit Court.
Judgment affirmed, with costs.
G. G Reily, for appellant.
J. C Adams, for appellee.
This is an action against the estate of Samuel S. McClure, deceased, for an allowance of a claim for damages resulting to appellant by reason of the alleged negligence of the decedent, as sheriff of Knox county, in failing to levy and collect an execution in favor of appellant against the execution defendants, who it is alleged had sufficient property subject to execution to have satisfied the execution.
Issue was joined and trial had at the March term, 1889, of the Knox Circuit Court, resulting in a finding and judgment for nominal damages in favor of appellant. The finding and judgment was during the March term, and prior to the last day thereof. The record does not show the presentation or making of any motion for a new trial at the same term the cause was tried and determined.
The record shows that on the 13th day of May, the same being the 7th day of the May term, 1889, of said court, the appellant presented a showing that at the March term, at which the cause was tried, he filed a motion for a new trial with the clerk of said court, and that the same was lost, and he asked leave to substitute such motion. The application to substitute the motion was presented to the court, and, over the objection and exceptions of the defendant, the court found that the appellant filed a motion for a new trial in said cause on the 46th day of the March term, and that the motion was lost; that the substituted motion is a true copy of the lost motion, and ordered and adjudged that the same be substituted, which was done. The action of the court in ordering the substitution is properly saved and presented by a bill of exceptions and assigned as cross-error; and this is properly the first question to be determined in the case, the only error being assigned by the appellant is the overruling of the motion for a new trial, and if the action of the court in permitting the substitution is erroneous, then there is no question presented by the appellant.
It is not contended that anything more was done at the March term than to prepare a written motion and file it with the clerk, and the finding of the court goes no farther. The question presented is whether writing out and filing a motion for a new trial is making an application for a new trial within the meaning of the statute.
Section 561, R. S. 1881, provides that "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...
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