Habbe v. Viele

• Decision Date: 25 May 1897
• Docket Number: 18,009
• Citation: 47 N.E. 1,148 Ind. 116
• Parties: Habbe v. Viele
• Court: Indiana Supreme Court

47 N.E. 1

148 Ind. 116

Habbe v. Viele

No. 18,009

Supreme Court of Indiana

May 25, 1897

Original Opininon of January 13, 1897, Reported at: 148 Ind 116.

OPINION

Howard, J.

The learned and accomplished counsel for appellee seems to have misapprehended, in some degree, the force of our decision as to the filing of the motion for a new trial. The record proper fails to show when this motion was filed. It should of course, as required by statute, have been filed on the first day of the December term. The showing made in the record, however, as said in the original opinion, is, simply that "the motion for a new trial was taken up and presented for the consideration of the court on the thirteenth judicial day of the December term, the parties being present." From the circumstances that the court then considered and ruled upon it, we must presume that the motion was regularly before that tribunal, that is, that the motion had been duly filed, as required by law. Nothing further was decided as to this matter in the original opinion.

As to the statement found in the transcript, that the motion was filed with the clerk in vacation, and previous to the first day of the term, even if that statement should be regarded it would not follow that the motion was not afterwards, and at the proper time, duly filed in court. But it is, rather, to be said, that the clerk's so-called "vacation entry" to show such filing, is no part of the record, and that it was, therefore, not regarded or alluded to in the original opinion. There can be no such thing as a court order made by a vacation entry of the clerk. Orders are made by the court itself, or, in certain cases, by the judge in vacation. This "vacation entry" is to be wholly disregarded. The record, therefore, failing to show anything in relation to the filing of the motion for a new trial, and the court having taken up and passed upon the motion at a time after the day when it should have been filed, we must, as before said, "presume in favor of the regularity of such action, and, consequently, that the court found the motion to have been filed at the proper time." So it was held in Secor v. Souder, 95 Ind. 95, cited by appellee that, "nothing to the contrary being shown, the presumption is the court decided rightly." In the cases cited and relied upon by counsel, the filing of, or the offer to file, the motion for a new trial was shown by the record to have been...