Pittsburgh, C., C. & St. L. Ry. Co. v. Kearns, No. 9795.

• Docket Nº: No. 9795.
• Citation: 116 N.E. 432
• Case Date: June 06, 1917
• Court: Court of Appeals of Indiana

116 N.E. 432

PITTSBURGH, C., C. & ST. L. RY. CO.
v.
KEARNS et al.

No. 9795.

Appellate Court of Indiana, Division No. 1.

June 6, 1917.

Appeal from Circuit Court, Wabash County; Nelson G. Hunter, Judge.

On petition for rehearing. Petition denied.

[116 N.E. 433]

For former opinion, see 115 N. E. 340. See, also, 58 Ind. App. 694, 108 N. E. 873.

G. E. Ross, of Logansport, for appellant. S. L. Strickler, of Marion, and Walter G. Todd, of Wabash, for appellees.

HOTTEL, C. J.

In a petition for rehearing, appellant very earnestly insists that the order dismissing this appeal be set aside and the case reinstated for disposition on its merits. This insistence is based upon the contention that the court erred in its opinion, dismissing the appeal, in each of the several holdings, specifically set out in such petition, which are in effect covered by the fourth, which is as follows:

“This court has erred in holding that this cause was not in fieri during the entire term of the court at which the judgment was rendered, and that a motion made during said term to modify said judgment did not extend the time for taking an appeal to 180 days from the ruling of the court on said motion to modify.”

There is no holding in such opinion that the cause was not in fieri during the term of the court at which the judgment was rendered, nor that the court did not have authority to change or modify such judgment during that term. The motion to modify was overruled, and this appeal is from the judgment originally rendered, and the question which we were required to determine and did determine was whether, for the purposes of ascertaining whether the appeal had been perfected within the time provided by section 672, Burns 1914, reference should be had to the date the judgment was rendered and the motion for new trial overruled (they each being of the same date), or to the date of the ruling on the motion to modify the judgment; the holding being that the former date was controlling.

[1] The right of appeal exists by virtue of the statute, and one desiring to avail himself of the benefits of such statute must bring himself within its provisions. Section 672, Burns 1914, in plain unequivocal language requires that an appeal “must be taken within one hundred and eighty days from the time the judgment is rendered.” The statute as thus amended, changing the time for appeal from 1 year to 180 days from the time the judgment is rendered, was passed in 1913. Before this time, the Supreme...