H. W. Johns-Manville Company v. South Shore Manufacturing Company

• Decision Date: 17 June 1919
• Docket Number: 9,907
• Citation: 123 N.E. 648,70 Ind.App. 484
• Parties: H. W. JOHNS-MANVILLE COMPANY v. SOUTH SHORE MANUFACTURING COMPANY ET AL
• Court: Indiana Appellate Court

123 N.E. 648

70 Ind.App. 484

H. W. JOHNS-MANVILLE COMPANY v. SOUTH SHORE MANUFACTURING COMPANY ET AL

No. 9,907

Court of Appeals of Indiana

June 17, 1919

From Lake Superior Court; Charles E. Greenwald, Judge.

Action by the H. W. Johns-Manville Company against the South Shore Manufacturing Company and others. From the judgment rendered the plaintiff appeals.

Affirmed.

Bomberger Peters & Morthland and Vose & Page, for appellant.

Greenlee & Call and F. B. Pattee, for appellees.

OPINION

BATMAN, C. J.

This is an action by appellant against appellees to foreclose a mechanic's lien against land of the South Shore Manufacturing Company, and to require the remaining appellees to answer as to their respective interests in said land which interests, if any, it is alleged are junior to said lien. Issues were joined by answers in general denial. A trial was had by the court, which resulted in a judgment in favor of appellant for $ 4,432.56, and an order on the receiver of the South Shore Manufacturing Company, who was a party defendant, to pay the same out of the proceeds in his hands for distribution as a general claim, under the order of the court. The foreclosure of the alleged mechanic's lien was denied. Appellant filed a motion for a new trial, and subsequently filed a supplemental motion therefor. Appellees filed a motion to strike out the supplemental motion for a new trial, which was sustained, and the court thereupon overruled the original motion for a new trial, to each of which rulings appellant excepted, and has assigned said rulings of the court as the errors on which it relies for reversal.

The record discloses that the decision of the trial court was rendered in this cause on December 29, 1915. On January 27, 1916, appellant filed its motion for a new trial, and subsequently on June 1, 1916, it filed a supplemental motion for a new trial on the ground of newly-discovered evidence, which it alleges could not have been discovered by the exercise of reasonable diligence in time to have introduced the same at the trial of the cause. As pertinent to the action of the court in striking out appellant's supplemental motion for a new trial, it should be noted that § 587 Burns 1914, Acts 1913 p. 848, provides that an application for a new trial may be made at any time within thirty days from the time the verdict or decision is rendered, and not afterwards. It has been held that this section of the statute is mandatory, as to the time of filing a motion for a new trial. Talbot v. Meyer (1915), 183 Ind. 585, 109 N.E. 841; Acme White Lead, etc., Works v. Indiana Wagon Co. (1916), 61 Ind.App. 644, 112 N.E. 392. It has also been held that a supplemental motion for a new trial may be filed within the time provided by statute for filing an original motion for such purpose. Fisher v. Southern R. Co. (1914), 55 Ind.App. 599, 104 N.E. 521. But we have not been able to find any authority in this state for filing such a motion after the expiration of the time for filing an original motion for a new trial. However, a party who discovered a cause for a new trial, after the expiration of the time fixed for filing a motion therefor, is not without a remedy, as the legislature by § 589 Burns 1914, § 563 R. S. 1881, has provided for such a contingency. In view of the language used in said § 587, supra, the decisions cited, and the provision of said § 589, supra, we are led to conclude that the filing of said supplemental motion for a new trial, more than thirty days after the decision of the court on the merits of the cause, was unauthorized, and the court did not err in striking it out.

The only question presented by the appellant involving the action of the court in overruling its motion for a new trial is based on a failure to include in the amount of recovery any sum as interest on the claim sued on. A determination of this question would require a consideration of the evidence, which an examination discloses is not in the record. The transcript shows that appellant's motion for a new trial was overruled on November 8, 1916, the same being the twenty-seventh judicial day of the October, 1916, term of the Lake Superior Court, at which time it was given sixty days in which to file its bill of exceptions; that thereafter on January 8, 1917, it presented to the trial judge the typewritten manuscript which now appears with the transcript as a bill of exceptions containing the evidence; that said judge did not then approve the same, but took it under advisement, and later, on March 17, 1917, approved the same and attached his certificate thereto evidencing such fact; and that thereafter on May 16, 1917, such completed bill was filed in the office of the clerk of the Lake Superior Court. We know judicially that the October, 1916, term of the Lake Superior Court expired in November of that year. It thus appears that the bill of exceptions containing the evidence was not filed during the term at which the motion for a new trial was overruled, nor within the time given beyond such term for that purpose, nor was it presented to the judge of the trial court for his approval within such time. Under these circumstances, such bill of exceptions cannot be considered a part of the record. Cornell v. Hallett (1895), 140 Ind. 634, 40 N.E. 132; Indiana, etc., Oil Co. v. O'Brien (1903), 160 Ind. 266, 65 N.E. 918, 66 N.E. 742; City of Huntington v. Boyd (1900),...