Gehring v. Ohm, 13744.

• Decision Date: 15 November 1929
• Docket Number: No. 13744.,13744.
• Citation: 168 N.E. 613,90 Ind.App. 300
• Parties: GEHRING v. OHM.
• Court: Indiana Appellate Court

90 Ind.App. 300

168 N.E. 613

GEHRING

v.OHM.

No. 13744.

Appellate Court of Indiana, in Banc.

Nov. 15, 1929.

Appeal from Hancock Circuit Court; Arthur C. Van Duyn, Judge.

Action by Anna Ohm against Caroline Gehring. The case was submitted in defendant's absence, and defendant's motion to withdraw the case from submission was overruled, and judgment was entered for plaintiff, and defendant appeals. Affirmed.

Ira Holmes, of Indianapolis, and Jackson & Hinchman, of Greenfield, for appellant.

Samuel J. Offutt, of Greenfield, and Merle N. A. Walker, of Indianapolis, for appellee.

NEAL, J.

Appellee, plaintiff below, commenced this action in the Marion superior court. Her complaint alleged an assault and battery by appellant, defendant below, and demanded damages in the sum of $5,000. Appellant answered by general denial, and thereafter filed an affidavit for change of venue from the county. The cause was then venued to Hancock county. On May 31, 1928, the same being the Thirty-Fourth judicial day of the April term of the court, and being the day the cause was set for trial, appellee was present in court in person and by attorney, the appellant absent; and the cause was submitted to the court for trial. The court heard evidence and took the matter under advisement. On June 9, 1928, appellant appeared in court by counsel and filed her verified motion to withdraw the “case from submission to the court for trial and judgment.” Eleven days later appellee filed a counter affidavit. The court two days later overruled the motion of appellant to withdraw the submission of the cause, gave appellant an exception, and rendered judgment in favor of appellee in the sum of $1,000. Appellant filed her motion for a new trial, and presented the following causes, to wit: (1) That the finding or decision of the court is contrary to law; (2) that the finding or decision of the court is not sustained by sufficient evidence; and (3) that the court erred in overruling plaintiff's verified petition to set aside the submission of the cause and granted plaintiff further hearing. Appellant has assigned the following errors on appeal: (1) The court erred in overruling appellant's motion to set aside submission; and (2) the court erred in overruling appellant's motion for a new trial.

[1] The ruling of the court in the motion to set aside the submission is in our judgment not ground for an independent assignment of error on appeal. Chicago & S. E. R. Co. v. Fifth National Bank, 26 Ind. App. 608, 59 N. E. 43, and authorities cited.

[2] The causes presented in the motion for a new trial (1) that the finding or decision is not sustained by sufficient evidence, and (2) that the finding or decision is contrary to law, cannot be considered, because the record does not contain the evidence. 2 Watson's Rev. Works' Practice 2001; note, with authorities cited.

[3] Although appellant, in her motion for a new trial in presenting the cause or reason to set aside the submission, inadvertently used the word “plaintiff,” when she should have used the word “defendant,” we will proceed to consider the cause and disregard the technical error.

Appellant, in her verified motion to set aside the submission, alleges, in substance, that she is the defendant in the cause of action wherein Anna Ohm is plaintiff; that she is married and her husband's name is Scott; that they reside in the city of Indianapolis; that when the case reached the Hancock circuit court it remained there a long time, and that the case was set for trial on May 31, 1928; that Scott Gehring, husband of the defendant, was keeping his wife Caroline advised of the hearing of the cause of action; that he was a traveling man and absent from home a great deal, and that he failed to advise his wife that the cause of action was set for trial, “until just a few days before said cause was to be heard and that thereupon they both got in touch with and consulted their attorneys who because of certain conditions existing, would not proceed further because certain conditions were not met by the defendant and her husband”; that defendant and her husband then attempted to employ the law firm of Jackson & Hinchman of Greenfield, who refused to accept employment because they were not acquainted with the facts of the case, and on the...