Nowling v. Akers
| Decision Date | 03 November 1971 |
| Docket Number | No. 2,No. 371A45,371A45,2 |
| Citation | 274 N.E.2d 546,149 Ind.App. 645 |
| Parties | Helen NOWLING, Appellant, v. Doyle AKERS, Appellee |
| Court | Indiana Appellate Court |
John M. Lewis, Seymour, for appellant.
Hamill, Price & Carroll, John P. Price, Thomas J. Carroll, Indianapolis, for appellee.
This case was brought by the Plaintiff-Appellant, Helen Nowling, against the Defendant-Appellee, Doyle Akers, to establish the paternity of a child born October 7, 1968. The case was tried to a jury which rendered a verdict in favor of the Appellant.
The Appellee filed his motion to correct errors asserting that he was not adequately represented by trial counsel because of the failure to call certain available witnesses. (Appellee's trial counsel and present appellant counsel are not the same.) The Appellee also made other assertions of error which are not presented here on appeal and are waived. Appellate Rule 8.3.
The trial court granted Appellee's motion to correct errors and granted Appellee a new trial. The sole reason stated for granting a new trial was:
'Defendant at the trial of this cause was not fully and adequately represented by counsel, and that certain witnesses that were material to the defense of Defendant, were not called and that Defendant, because of said facts, did not have a fair and full trial in said cause and that said error cannot be corrected except by granting a new trial.'
We are limited to a consideration of the reasons stated by the trial court for granting the new trial. Landers v. McComb, Ind.App., 248 N.E.2d 358 (1969). If any one of the reasons stated by the trial court for granting a new trial is correct, the granting of the new trial will be affirmed on appeal. Moore v. Berry Refining Co., Ind.App., 248 N.E.2d 398 (1969).
In this case, the Appellee filed an affidavit of the members of the jury with reference to their verdict in this case. This practice has been strongly condemned by our Supreme Court in Wilson v. State, Ind., 255 N.W.2d 817 (1970), and by this court in Jessop v. Werner Transportation Company, Ind.App., 261 N.E.2d 598 (1970). We renew our condemnation of such practice. If the trial court's decision were based on such an improper affidavit, we would not hesitate to reverse this case.
However, the Appellee filed an extensive affidavit with his motion for new trial in regard to the failure of his trial counsel to subpoena witnesses and to secure evidence. This was properly before the trial court for its consideration.
A trial court's granting of a new trial will be reversed on appeal only where (1) the trial court abused its judicial discretion, (2) a flagrant injustice has been done the Appellant, or (3) a very strong case for relief from the trial court's ordering a new trial has been made by the Appellant. Griffith v. Mathew, 141 Ind.App. 462, 229 N.E.2d 657 (1967) and Moore v. Berry Refining Co. et al., Ind.App., 248 N.E.2d 398 (1969).
The precise grounds stated by the trial judge here for granting a new trial has not been previously considered in this state, but we deem it within ambit of the trial judge's authority as defined by our case law.
In Griffith, supra, and in Bailey v. Kain, 135 Ind.App. 657, 192 N.E.2d 486 (1964), this court stated that the underlying consideration in granting a new trial was the doing of substantial justice. Also, there is a strong presumption is favor of the trial court's action and this court is reluctant to second guees the trial court in granting a new trial. Bailey v. Kain imposes upon the trial judge the keeping of his eyes and ears open to what goes on during a trial. This unique responsibility of the trial court is well stated by Judge Hunter in Bailey v. Kain, 135 Ind.App. 657, 671, 192 N.E.2d 486, 492:
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Lindsey v. State
...use of affidavits was specifically rejected in Jessop v. Werner Transportation Co., Ind.App., 261 N.E.2d 598 (1970); Nowling v. Akers, Ind.App., 274 N.E.2d 546 (1971), and Leuck v. Goetz, Ind.App., 280 N.E.2d 847 (decided April 3, In view of the specific holdings of this court and our Supre......
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State v. Simerlein
...members of the jury regarding their thought processes in arriving at a verdict. As this court stated in Nowling v. Akers (1971), 149 Ind.App. 645, at 647, 274 N.E.2d 546, at 547 (transfer denied), '(i)f the trial court's decision were based on such an improper affidavit, we would not hesita......
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Laine v. State
...condemnation of this practice which is found in Jessop v. Werner Transportation Co., Ind.App., 261 N.E.2d 598 (1970), Nowling v. Akers, Ind.App., 274 N.E.2d 546 (1971) and more recently in Lindsey v. State, Ind.App., 282 N.E.2d 854 (1972). Our Supreme Court also agrees. See Wilson v. State,......
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Eytchison v. Burgess, 48A02-9108-CV-327
...See Jackson v. Russell (1986), Ind.App., 498 N.E.2d 22; In re Marriage of Ford (1984), Ind.App., 470 N.E.2d 357; Nowling v. Akers (1971), 149 Ind.App. 645, 274 N.E.2d 546. ...