Hunter v. Hunter, 568

Citation247 N.E.2d 236
Decision Date08 May 1969
Docket NumberNo. 568,568
PartiesOrval D. HUNTER, Administrator of the Estate of Ray E. Hunter, Deceased, Hilda Hunter, Appellants, v. Iva HUNTER and Frankie Ferguson, Appellees. A 97.
CourtCourt of Appeals of Indiana

Seal & Seal, Washington, James B. Sparks, Bloomfield, for appellants.

James H. Ferguson, Bloomington, for appellees.

ON MOTION TO DISMISS OR AFFIRM

PER CURIAM.

On December 6, 1968, the appellees appearing specially, filed a motion to dismiss this appeal, or in the alternative to affirm the judgment of the court below. Said motion to dismiss in substances sets forth the following:

1. That this is an action brought by the appellees against the appellants for the declaration of a constructive trust as shown by the appellees' complaint.

2. That a trial by the court resulted in a decision for the appellees that a constructive trust be established for the benefit of appellees to certain real estate.

3. That the first error assigned by the appellants, to-wit:

'The court erred in overruling appellants' Motion for New Trial',

presents no error to this court for the following reasons:

(a) That no motion for a new trial was filed by the appellants herein subsequent to entry of final judgment on the 13th day of December, 1967.

(b) That the trial court entered judgment in favor of the appellees and against the appellants on the 29th day of September, 1967, which judgment was later modified on the 13th day of December, 1967.

(c) That appellants filed a motion for a new trial on the 27th day of October, 1967, which was within 30 days of the original judgment but before the final judgment on the 13th day of December, 1967.

(d) That in accordance with Rule 1-14A of the Supreme Court, appellants were required to file their motion for a new trial within 30 days from the date of the judgment of the trial court entered on the 13th day of December, 1967, or, on or before January 12, 1968, and said appellants have not done so.

The appellees maintain that no motion for a new trial was filed by the appellants herein subsequent to the entry of the amended final judgment on December 13, 1967, and, therefore, no issue has been saved by appellants for consideration of this court by the assignment of error that the trial court erred in overruling appellants' motion for a new trial; and that the motion for a new trial relied upon in this assignment of error by the appellants was directed to the original judgment entered by the trial court on September 29, 1967, which judgment was later modified, after appellants filed their motion for a new trial on October 27, 1967, by the entry of an amended judgment on December 13, 1967.

This court has held that where a trial court, following a motion for a new trial, opens and amends a judgment, a second motion for a new trial should be addressed to the amended judgment. See: Newton v. Board of Trustees for Vincennes University (1968), Ind.App., 235 N.E.2d 84, and cases cited therein.

In the Newton case the appellants did not file a subsequent motion for a new trial after the original judgment was amended; and in said case this court spoke as follows:

'(2) Therefore, we are of the opinion that the proper procedure to have saved the errors advanced in the first motion for a new trial would have been for the Appellants to have filed a second motion for a new trial after the original judgment had been opened and amended, or modified, and to have renewed the averred errors charged in the original motion for new trial.' (Emphasis supplied.)

The principal issue in the case at bar to be determined by the motion to dismiss or affirm is whether or not after the original judgment was amended, a new motion for a new trial should have been addressed to the amended judgment.

Relying on the principle of law announced in the Newton case, it is the opinion of this court that appellants have presented no question for review by the assignment of error that the trial court erred in overruling the motion for a new trial.

Motion to dismiss this appeal sustained, and appeal is dismissed. Costs are to be assessed against the appellants.

WHITE, J., dissents with dissenting opinion, in which opinion SULLIVAN, J., concurs.

WHITE, Judge (dissenting).

The result reached by the Court's opinion is premised on the implied assumption that the appellants' motion for new trial was rendered moot by the trial court's later modification of its judgment. The Court would thus require appellants to file a second motion for new trial in order to save for appeal any error committed in overruling the first motion for new trial. Because the appellants failed to file a second motion, the majority is dismissing the appeal without deciding whether the first motion for new trial cited errors which were not cured by the modification of the judgment.

I cannot concur in the per curiam opinion because, in my understanding of the Indiana statutes and the Supreme Court of Indiana case law, a motion for new trial is directed to the verdict of decision on which the judgment is based and not to the judgment itself. This distinction is made clear by the statutes, rules, and cases regarding the time in which motions for new trial must be filed.

The statute governing civil cases is Ind. Acts 1881 (Spec.Sess.), Ch. 38, § 422, as last amended by Ind.Acts 1919, Ch. 14, § 1, being Burns Ind.Stat.Ann. § 2-2403, which reads in pertinent part, as follows:

'The application for a new trial may be made at any time within thirty (30) days from the time when the verdict or decision is rendered * * *.' (Emphasis added.)

The Supreme Court of Indiana has adopted at least two rules which are applicable. The first is Rule 1-14A, which reads in part as follows:

'It shall be deemed a sufficient filing of a motion for a new trial within thirty (30) days following the rendition of a verdict or decision in a cause, if said motion is filed with the judge having jurisdiction of the cause, who shall immediately make a docket entry showing the filing thereof, or if said judge is not available for the presentation and the entry of said motion, then said motion for a new trial shall be filed with the clerk of the court in which said cause is pending, in vacating or in term time, and the clerk shall immediately thereupon note the filing of said motion for a new trial on the court's docket in the cause, and the clerk shall thereafter call said filing of said motion for a new trial to the attention of the judge in the case at the first opportunity.'

Supreme Court Rule 2-2 reads:

'In all appeals and reviews the assignment of errors and transcript of the record must be filed in the office of the clerk of Supreme Court within ninety (90) days from the date of the judgment or the ruling on the motion for a new trial (whichever is later) * * *.'

It is here applicable to the extent that the parenthetical clause recognizes that a motion for new trial can be filed and ruled upon before a judgment is ever rendered.

Most Supreme Court cases touching on this question are criminal cases. The statute limiting the time for filing a motion for new trial in criminal cases is Ind. Acts 1905, Ch. 169, § 282 being Burns Ind.Stat.Ann. § 9-1903 (quoted supra). It uses slightly different language than the statute applicable to civil cases, which is Ind. Acts 1881 (Spec.Sess.) Ch. 38, § 422, as last amended by Ind. Acts 1919, Ch. 14, § 1, being Burns Ind.Stat.Ann. § 2-2403 (quoted supra). The criminal statute, § 9-1903, provides that the motion 'must be filed within thirty (30) days from the date of the verdict or finding'. § 2-2403, the civil statute counts the thirty days 'from the time when the verdict or decision is rendered'. Turner v. State, Ind., 233 N.E.2d 473, 476 (1968), held that:

'* * * it is clear that the word 'finding' as used in Ind.Ann.Stat. § 9-1903, supra, and the word 'decision' as used in Rule 1-14A, are not inconsistent, but, as between these two provisions, are essentially synonymous. Both words, in the context used, have reference to the conclusion reached by the trial judge when trial is to the court.' (Emphasis added.)

In Turner the defendant was found guilty by a jury verdict sixty days before he was sentenced. No motion for a new trial and filed until twenty-one days after sentencing (eighty-one days after the verdict was returned). The Supreme Court held 'that appellant's motion for new trial was not timely filed, and, therefore, does not raise any issue for decision by this Court.' (Id. at 475.)

In Capps v. State, 242 Ind. 165, 169, 177 N.E.2d 457, 458 (1961), the trial court found appellant guilty of robbery on March 18, 1959, but made no finding as to his age, as required by Burns Ind.Stat.Ann. (1956 Repl.) § 9-1820 for the purpose of determining the institution to which he should be committed. On March 25, 1959, the trial court made a further finding as to age, place of commitment, length of sentence, and period of disfranchisement. The opinion then said:

"The appellant filed his motion for a new trial on April 24, which was thirty-seven days after the original finding of guilty, but less than thirty days after the subsequent court record finding of age and sentencing. The question then presented is: which was the 'finding' referred to in the statute fixing a thirty-day limit within which a motion for a new trial must be filed?'

'We have had a similar question before this court in Watson v. State, 1957, 236 Ind. 329, 140 N.E.2d 109. In that case the appellant was charged with armed robbery, as distinguished from common robbery, as in the case before us. We there decided that the age was an essential element of the crime of armed robbery, since it was fixed in the statute defining the crime. We distinquished such a case from the cases where an indeterminate sentence, as in the present case, merely requires the court to determine the age for the...

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