Matthew v. Gavit
| Decision Date | 02 March 1966 |
| Docket Number | No. 20404,20404 |
| Citation | 214 N.E.2d 404,138 Ind.App. 425 |
| Parties | William Ralph MATTHEW and Alverta White Matthew, Appellants, v. Albert M. GAVIT, as Administrator de bonis non of the Estate of Henri Louis Bourdin, Appelee. |
| Court | Indiana Appellate Court |
[138 INDAPP 425] Thomas A. Hoadley, Frederick J. Graf, Bloomington, for appellants.
[138 INDAPP 426] Albert M. Gavit, pro se.
This case is pending before this Court at this time on 'Appellee's Motion to Dismiss or Affirm.' The following is the nature of this action.
More than seven years after a judgment foreclosing two real estate mortgages was entered by the Monroe Circuit Court, the appellant, one of the defendants in the foreclosure action, filed a motion with the Monroe Circuit Court requesting permission to file a 'Belated Motion for a New Trial.'
The question which the appellant seeks to have reviewed by this Court is whether the Monroe Circuit Court erred in striking the appellant's motion. A brief summary of the proceedings, including the proceedings in the action to foreclose, is set out below.
On November 17, 1954, the appellee filed an action in the Monroe Circuit Court to foreclose two mortgages on real estate located in Monroe County, Indiana. The appellant, one of the two owners of the real estate, was a defendant in the action. The case was tried before the Monroe Circuit Court, without intervention of a jury, on May 19, 1958. The appellant was present in person at the trial and was represented at the trial by her attorney. At the conclusion of the evidence, a judgment of foreclosure was entered in favor of the plaintiff (appellee herein). Thereafter on June 11, 1958, the defendant Alverta White Matthew, appellant herein, filed a timely motion for a new trial. Both the appellant and her counsel were present at the argument on that motion. The motion for a new trial was overruled on June 23, 1958. There was no appeal from this ruling.
On March 15, 1965, the appellant filed with the trial court an unverified motion for permission to file a 'Belated (and second) Motion For a New Trial.' On March 25 1965, a verified second paragraph of appellant's motion for permission[138 INDAPP 427] to file a 'Belated Motion For a New Trial' was filed by the appellant. The appellee, on April 1, 1965, filed a motion to strike the appellant's motion and this motion was sustained by the trial court on April 2, 1965.
The only errors assigned by the appellant on appeal are as follows:
'1. The court erred in sustaining appellee's motion to strike the first and second paragraphs of the appellant's motion for permission to file a belated motion for a new trial.
The appellee questions the 'argument' section of appellant's brief contending that the same does not meet the requirements of Rule 2-17 of the Supreme Court of Indiana. The main contention being that the appellant in her brief does not concisely state the basis of her objections, exhibiting clearly the points of fact and law being presented.
Rule 2-17 of the Supreme Court of Indiana provides, in pertinent part, as follows:
'After each assignment of error relied upon * * * there shall be concisely stated the basis of the objection to the ruling complained of, exhibiting clearly the points of fact and of law being presented, and how they are applicable * * *.'
From an examination of the 'argument' portion of the brief it appears that the appellant has failed to comply with the above quoted rule. In the case of Justice v. Tripp (1959), 130 Ind.App. 187, 158 N.E.2d 809, Rule 2-17(e) our Court held that
However, because this Court is reluctant to decide cases on technicalities, this opinion will now deal with the errors assigned by appellant Alverta White Matthew in her brief.
The appellant asserts that she was prevented from introducing evidence which would have been a 'sound' defense to the foreclosure action, without attempting to state or indicate the nature of that evidence, which assertion was followed by her conclusion that her constitutional rights had been violated and that she is therefore entitled to file a second or belated motion for a new trial. It appears that the appellant is not arguing the question raised by her assignment of errors, i.e., whether the trial court erred in striking her motion for permission to file a late motion for a new trial. She appears to be arguing the question whether she is entitled to a new trial, without having filed a second motion for a new trial and without representing to the trial court or to this Court what the actual contentions of her suggested motion for a new trial will be.
The appellant also argues, in the alternative, that her motion was a petition for a writ of error coram nobis or a complaint for equitable relief.
The main argument advanced by the appellant to support her contention that she may file a late motion for a new trial is that her constitutional rights were violated. However, she does not cite a single authority which even suggests that in the present case there was a denial of due process. Assuming, without deciding, that the appellant is correct in her contention, she may not at this late hour file the motion that she seeks. Our courts have uniformly held many times that a trial court is without jurisdiction to entertain a motion for a new trial after the statutory time for filing the motion has expired. See, Lloyd's Motor [138 INDAPP 429] Sales of Evansville, Inc. v. Ohning (1961) 133 Ind.App. 228, 177 N.E.2d 922. Our Court in this case held:
'Sec. 2-2403 [Burns Indiana Statutes] provides in 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.' Our courts have consistently held that this statute is mandatory and that motions for a new trial must be filed within the time affixed by statute.'
(Citing authorities); and Smith v. First Nat'l. Bank of Hartford City (1937), 104 Ind.App. 299, 11 N.E.2d 58.
In the Smith case a motion for a new trial was timely filed. Later, more than thirty days after the decision was rendered, an amended motion for a new trial was filed. The amended motion repeated the grounds assigned in the original motion and added, as an additional ground, newly discovered evidence. It was held, on appeal from the trial court's action in overruling the amended motion, that no question was presented for review. Our Court spoke as follows:
'There is no provision in our statutes for the filing of an amended or supplemental motion for new trial after the time for the filing of a motion for a new trial has expired (Acts 1881, Sp. Sess. c. 38, p. 240, Secs. 420-424, as amended Acts 1909, c. 165, Sec. 1, p. 400, Acts...
To continue reading
Request your trial
-
White v. Livengood
...Sutton v. State (1960), 240 Ind. 512, 166 N.E.2d 651; Lines v. Browning (1973), 156 Ind.App. 185, 295 N.E.2d 853; Matthew v. Gavit (1966), 138 Ind.App. 425, 214 N.E.2d 404. Examining the first Motion to Correct Errors we can only conclude that it did not raise any errors for our TR. 59(B) a......
-
Strate v. Strate
...motion was not filed within the time allowed, no question concerning its overruling could be presented on appeal. Natthew v. Gavit (1966), 138 Ind.App. 425, 214 N.E.2d 404; Sutton v. State (1960), 240 Ind. 512, 166 N.E.2d Instead of filing a motion for new trial, plaintiff filed her Petitio......