Intermediate Life Assur. Co. of Indiana v. Cunningham

• Decision Date: 02 March 1915
• Docket Number: No. 9029.,9029.
• Citation: 108 N.E. 17,59 Ind.App. 326
• Parties: INTERMEDIATE LIFE ASSUR. CO. OF INDIANA v. CUNNINGHAM.
• Court: Indiana Appellate Court

59 Ind.App. 326

108 N.E. 17

INTERMEDIATE LIFE ASSUR. CO. OF INDIANA

v.CUNNINGHAM.

No. 9029.

Appellate Court of Indiana, Division No. 1.

March 2, 1915.

Appeal from Circuit Court, Porter County; A. D. Bartholomew, Judge.

Action by Olive Cunningham against the Intermediate Life Assurance Company of Indiana. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. K. Denton, of Evansville, and Bomberger, Curtis & Starr, of Gary, for appellant. Wm. J. Whinery, of Hammond, and John D. Kelly, of Valparaiso, for appellee.

SHEA, J.

A motion to dismiss this appeal has been duty presented. The cause was tried at an adjourned term of the April, 1913, term of the Porter circuit court, which began on the 8th day of July, 1913. The trial of this cause began on the 14th day of July, 1913, and was concluded on the 15th day of July, at which time the jury returned a verdict for appellee, upon which verdict the court, on said 15th day of July, entered final judgment in favor of appellee. The April term, as shown by the record, adjourned August 14, 1913, thereafter. On the 11th day of August, 1913, less than 30 days after verdict had been returned and judgment entered, and while said adjourned term was still in session, appellant filed in the clerk's office of the Porter circuit court a motion for a new trial of said cause. The clerk of said court entered a vacation order showing that appellant on the 11th day of August, 1913, had filed in the clerk's office of said court its motion for a new trial, and on the 6th day of March, 1914, being the ninth judicial day of the February, 1914, term of said court, appellee filed its written motion in said Porter circuit court in this cause, reading as follows:

“Comes now the plaintiff in the above-entitled cause and respectfully moves the court to strike from the files a paper purporting to be a motion for a new trial on behalf of the defendant in this case, which paper purports to have been filed in the clerk's office of this court on the 11th day of August, 1913, and also for a further order expunging from the vacation order book of this court the vacation order book entry showing the filing of said pretended motion for a new trial in the clerk's office, on said 11th day of August, 1913, and in support of said motion would respectfully show the court that this cause was tried in this court before the judge thereof and a jury on the 15th day of July, 1913, at an adjourned term of this court, when said term begun on the 7th day of July, 1913; that the jury in said cause returned a verdict for the plaintiff in said cause, and judgment was entered in this cause on the verdict of the jury returned as aforesaid on the 15th day of July, 1913; that said verdict was rendered and said judgment entered in said cause at the regular term of this court; that said term of this court continued for a period of more...