Lowry v. Indianapolis Traction & Terminal Co.

• Decision Date: 06 February 1920
• Docket Number: No. 9882.,9882.
• Citation: 77 Ind.App. 138,126 N.E. 223
• Court: Indiana Appellate Court
• Parties: LOWRY v. INDIANAPOLIS TRACTION & TERMINAL CO.

77 Ind.App. 138

126 N.E. 223

LOWRY

v.INDIANAPOLIS TRACTION & TERMINAL CO.

No. 9882.

Appellate Court of Indiana, Division No. 2.

Feb. 6, 1920.

Appeal from Circuit Court, Morgan County; Nathan A. Whitaker, Judge.

Action by Margaret J. Lowry against the Indianapolis Traction & Terminal Company. After judgment for plaintiff, defendant filed its application for new trial on account of newly discovered evidence, and from a judgment awarding new trial, plaintiff appeals. Affirmed.

Superseding former opinion, 124 N. E. 409.

A. M. Bain, of Martinsville, and Beckett & Beckett and W. F. Elliott, all of Indianapolis, for appellant.

D. E. Watson and S. C. Kivett, both of Martinsville, and W. H. Latta, of Indianapolis, for appellee.

McMAHAN, J.

The appellant commenced her action in the superior court of Marion county against the appellee, to recover damages on account of personal injuries alleged to have been caused by the negligence of appellee. The venue was changed to the circuit court of Morgan county, where there was a trial, which resulted in a verdict and judgment for appellant for $3,000. Appellee after term filed its application in the office of the clerk of the Morgan circuit court for a new trial on account of newly discovered evidence.

Appellant filed a plea in abatement, alleging that she was a resident of Marion county, and that the Morgan circuit court, therefore, had no jurisdiction over her. The court sustained appellee's demurrer to this plea. An answer of general denial was filed. There was a trial by the court, followed by a judgment awarding appellee a new trial, from which appellant appeals and assigns as error that the court erred: (1) In sustaining the demurrer to her plea in abatement; (2) in overruling her demurrer to the complaint; and (3) in overruling her motion for a new trial.

Appellant's first contention is that an application for a new trial by complaint filed after term is not within any provision of the statute allowing suit to be brought in a county in which the defendant does not reside, and is therefore governed by section 315, Burns 1914, which provides that-

“In all other cases, the action shall be commenced in the county where the defendants, or one of them, has his usual place of residence.”

[1] Applications for new trials are controlled by the common law or by the statutes. New trials at common law were granted only by the trial court. Under the English chancery practice, relief from a judgment on the ground of newly discovered evidence was obtained by bill of review. While courts of chancery undertook to grant relief from unconscionable judgments rendered at law, they did not in fact grant a new trial. They simply compelled the party holding the judgment to consent to a new trial or be enjoined from enforcing the judgment.

[2] In 20 Standard Ency. of Proc. 582, it is said:

“Unless the statute provides otherwise, the motion for a new trial must be made in the court in which the trial took place.” “The motion for a new trial, in such cases, is addressed to the discretion of the court which directed the trial of the issues.” Clayton v. Yarrington, 33 Barb. (N. Y.) 144.

Motions for a new trial must be made to the court before which the action was tried, and a motion, whether for a new trial or for a vacation of a judgment, must be made in the county or district in which the judgment was rendered. 14 Ency. Plead. & Prac. 716; Minkler v. Minkler's Estate, 14 Vt. 558;Godwin v. Monds, 101 N. C. 354, 7 S. E. 793;Grattan v. Matteson, 51 Iowa, 622, 2 N. W. 432;Beach v. Beach, 6 Dak. 371, 43 N. W. 701;Rickett v. Johnson, 8 Cal. 34;Uhlfelder v. Levy, 9 Cal. 608;Anthony v. Dunlap, 8 Cal. 26.

“Ordinarily a new trial can be granted only by the trial court.” 29 Cyc. 723.

“At common law, all applications for new trials, or for a trial in cases where judgment has been rendered by default, must have been made to the court wherein the cause had been determined.” Adams v. Howard, 14 Vt. 560.

In Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681, it is said:

“The power of setting aside judgments upon motion, is a common-law power incident to courts of record, and exercised usually under restraints imposed by their own rules, and rarely after the term has passed in which the judgment was rendered.”

“The re-examination of the issues of fact must be in the same court. This requires proceedings for new trials to be instituted in the same court. No other court has authority to entertain the motion.” Haynes, New Trial, § 1, p. 11.

Another author of no mean repute, in speaking of the motion for a new trial, says its office is to “bring before the court of original jurisdiction its rulings, in order that it may review them and, if need be, correct errors into which it may have fallen.” Elliott, App. Proc. § 830.

“If there is another trial of the case it must be in the district court. There is no doubt that the district court is the place to make application for such trial. *** There having been a trial thereof in the district court, that court and no other might grant a new trial.” Williams v. Miles, 73 Neb. 193, 102 N. W. 482, 105 N. W. 181, 106 N. W. 769.

“The proper office in which to file a motion for a new trial is that of the clerk of the court in which the case was tried.” New Eng. Mortg., etc., Co. v. Collins, 115 Ga. 104, 41 S. E. 270.

And we read in Smith v. Hall, 71 Conn. 427, 42 Atl. 86:

“An application for such relief, based on matters of equitable cognizance, must be brought to the court which rendered the original judgment, in the county where the record remains, if that court is competent to entertain it. The superior court for Litchfield county has full equitable, as well as legal, jurisdiction, and is the only forum before which the defendant can ask for the new trial that he desires. Its record of a final judgment against him could not be impugned by the records of the court for another county, should these purport to show that this judgment had been set aside. The whole history of every cause must be found in the records of the court to which it was brought or into which it may have been legally removed.”

“The proper form of proceeding to vacate a decree obtained by fraud upon the party, or by imposition on the court, is by petition to the court in which the decree was given.” Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223.

That a motion for a new trial must be filed with and in the trial court is recognized by this court in William Deering & Co. v. Armstrong, 18 Ind. App. 687, 48 N. E. 1045.Intermediate Life, etc., Co. v. Cunningham, 59 Ind. App. 326, 108 N. E. 17. The court in the last case cited, on page 329 of 59 Ind. App., on page 18 of 108 N. E., said:

“The record nowhere discloses that said motion for a new trial was presented to the trial court within 30 days from the time said cause was tried and judgment rendered.”

This clearly recognizes that “the court” referred to in the statute is the trial court.

A motion for a new trial must be made in the court where the case was tried. Lambert v. Cheney, 221 Mass. 378, 108 N. E. 1078.

[3][4][5][6] During the time Indiana was a territory the practice of granting new trials, and the causes for which new trials were granted, were regulated by the common law and not by statute. The general rule of the common law was that a new trial would be granted where an injustice had been done. The only statutory provision being that “not more than two new trials shall be granted to the same party, in the same cause.” Laws Indiana Territory, 1807, § 21, p. 324.

By an act approved January 2, 1818, the common law of England, with certain exceptions, was adopted by the Legislature as “the rule of decision, and shall be considered as of full force until repealed by legislative authority.” Acts 1817-18, p. 308. By an act approved January 28, 1818, the Territorial Act of 1807, providing that not more than two new trials should be granted to the same party in the same cause, was re-enacted (Acts 1817-18, § 49, p. 39) and remained in force without change until 1824, when it was changed so as to read:

“Not more than two new trials shall be granted to the same party, in the same cause: Provided, that the Supreme and circuit courts, in the granting of new trials, shall grant the same on the payment of costs, or on the costs abiding the event of the suit, as the justice and equity of the case may require, taking into consideration the causes, which may make such new trial necessary.” R. S. 1824, p. 298.

This provision was re-enacted in 1831, 1838, and 1843 without change. R. S. 1831, p. 409; R. S. 1838, p. 454; R. S. 1843, § 324, p. 732.

The first statute in this state naming the grounds for which new trials could be granted and regulating the practice of filing aplications therefor is found in 2 R. S. 1852, § 352 et seq., p. 117.

Section 355 provided that the application must be by motion, upon written cause, filed at the time of making the motion. Section 356 provided that-

“Where causes for new trial are discovered, after the term at which the verdict or decision was rendered, the application may be made by a complaint filed with the clerk not later than the second term after the discovery, on which a summons shall issue, as on other complaints,” etc.

The sections of the statute now in force authorizing and regulating the granting of new trials (Burns 1914, § 585 et seq.) are as follows:

“A new trial may be granted in the following cases:

“First. Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court or abuse of discretion, etc. ***

“Sixth. That the verdict [of the jury] or decision is not sustained by sufficient evidence or is contrary to law.

“Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.

“Eighth. Error of law occurring at the trial and excepted to by the party making the application, and the...