Keplinger v. Ward
| Decision Date | 28 March 1946 |
| Docket Number | No. 17436.,17436. |
| Citation | 116 Ind.App. 517,64 N.E.2d 307 |
| Parties | KEPLINGER v. WARD et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from St. Joseph Superior Court, No. 2; J. Elmer Peak, Judge.
Action between Mabel Ward Keplinger and George A. Ward and others. From the judgment, the first named party appeals.
Order in accordance with opinion.
Allen & Allen, of South Bend, for appellant.
Lewis W. Hammond, of South Bend, for appellees.
The only assignment of error not waived by appellant is, ‘The court erred in overruling appellant's amended motion for a new trial’.
But the amended motion for a new trial was not filed until fifty-six days after the finding and judgment of the trial court. Having been filed too late it was a nullity. It did not take out the original motion and the court's ruling on it presents no question for consideration. Berning v. Scheuman, 1942, 111 Ind.App. 156, 40 N.E.2d 1005.
An examination of the transcript discloses that the original motion for a new trial was filed in time but that the trial court has not ruled on it. Both appellant and appellees have briefed the questions which would be presented by the overruling of said motion. Therefore, if the trial court so rules no further briefing here is necessary. But if the trial court sustains the motion this appeal should be dismissed.
It is therefore ordered that consideration of this appeal be suspended until disposition is made of the original motion for a new trial in the trial court, and the clerk of that court is ordered to certify here any such proceedings.
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...years or by reasons of purely physical infirmities. Daugherty v. Daugherty, 1945, 115 Ind.App. 253, 57 N.E.2d 599;Keplinger v. Ward, 1946, 116 Ind.App. 517, 64 N.E.2d 307,65 N.E.2d 644;Baker v. McCague, Ind.App., 1947, 75 N.E.2d 61. The decision of the trial court was justified by the evide......
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