Herkimer v. McGregor

• Citation: 126 Ind. 247,26 N.E. 44
• Parties: Herkimer et al. v. McGregor et al.
• Decision Date: 09 December 1890
• Court: Supreme Court of Indiana

126 Ind. 247

26 N.E. 44

Herkimer et al.

v.McGregor et al.

Supreme Court of Indiana.

Dec. 9, 1890.

On rehearing. For former report, see 25 N. E. Rep. 145.

OLDS, C. J.

We fully considered the questions presented by the record in this case, and, as stated in the opinion, reversed it for the error of the court in overruling the motion of the appellant for a new trial. In doing so, we fully considered all the evidence in the case. In concluding the opinion, we, in effect, said that the question would have been more properly presented by exceptions to the conclusions of law, but that the exceptions were not taken at the proper time, and hence we did not make any ruling as to that particular error. This suggestion as to the exceptions to the conclusions of law was made for the reason that we were convinced the court also erred in its conclusions of law, though no question was properly presented, and therefore we could not reverse the judgment, with instructions to restate the conclusions of law. Counsel for appellees in their brief on petition for rehearing earnestly insist that there is no question presented by the motion for new trial, for the reason, as we interpret their brief, that the motion for new trial was prematurely filed, but with this theory we cannot agree. The cause was submitted to the court for trial, and on proper request, the court made a special finding of facts. After the announcement of the finding of facts, appellants filed a motion for new trial, which was overruled. Exceptions were then taken to the conclusions of law, and thereupon the court appointed commissioners to make partition. Afterwards the commissioners reported. Appellants excepted to their report, and then the court rendered final judgment of partition, and apportioned the costs, and from this judgment appellants appeal. The appeal was taken from the final judgment in the case, and the motion for new trial was made and filed at the proper time, and exceptions reserved to the overruling of it. This is held to be the proper practice in the case of Jones v. Jones, 91 Ind. 72. Under our statute, a motion for new trial may be made either before or after judgment, provided it be made and filed at the term at which the verdict or decision is rendered; or if the verdict or decision be rendered on the last day of a term, then upon the first day of the next term. In Jones v. Jones, supra, it is held that the word “decision,” as used in section 561, Rev. St. 1881...