Pittsburgh, C., C. & St. L. Ry. Co. v. Kearns

• Decision Date: 06 June 1917
• Docket Number: No. 9795.,9795.
• Citation: 116 N.E. 432
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. KEARNS et al.

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.

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 Court, in interpreting said former statute in the case of Joyce et al. v. Dickey, 104 Ind. 183, 3 N. E. 252, said:

“The case was finally disposed of upon its merits, when the motion for a new trial was overruled, and judgment entered in favor of appellee in February, 1880, and, as the appeal was not taken within a year from that time, it cannot be entertained.”

[2] Again, in the case of Blaemire v. Barnes, 173 Ind. 657, 659, 91 N. E. 232, the Supreme Court held that, while a motion for new trial when seasonably filed would postpone the finality of the judgment for the purposes of appeal, other motions would not have such effect, and said:

“It is evident that the motion in arrest of judgment made in this case did not postpone the time for taking the appeal, for the reason that said motion was not available and could not be considered, because not made until after the judgment had been rendered. *** It is clear that this case was finally disposed of upon its merits when the motion for new trial was overruled on May 1, 1908, and, as the appeal was not perfected within the year from that date by filing a transcript in the office of the clerk of this court, the appeal must be dismissed.” (Our italics.)

The language italicized supra is applicable to a motion to vacate or to modify the judgment.

[3] The Legislature, in adopting in the amended act the time of rendition of the judgment as the time from which the time for perfecting the appeal should begin to run the same as in the former statute, will be presumed to have also adopted the interpretation placed thereon by...