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

Decision Date24 June 1920
Docket NumberNo. 23410.,23410.
Citation128 N.E. 42,191 Ind. 1
CourtIndiana Supreme Court
PartiesPITTSBURGH, C., C. & ST. L. RY. CO. v. KEARNS et al.


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

Action by Joseph Kearns and another against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiffs, and defendant appealed to the Appellate Court, from which the case was transferred to the Supreme Court under section 1394, Burns 1914. Affirmed.

Superseding opinions of Appellate Court, 116 N. E. 432, and 115 N. E. 340.

G. E. Ross, of Logansport, for appellant.

S. L. Stricler, of Marion, for appellees.


The appellees contend that, as the transcript of proceedings below was not filed here within 180 days from the date of the overruling of the motion of appellant for a new trial, this appeal should be dismissed.

[1] The transcript was filed within 180 days from the date the court overruled appellant's motion to modify the judgment rendered. This motion to modify was filed upon the last day of the term at which the motion for a new trial was overruled and the judgment rendered.

The finding of a motion to modify a judgment suspends and postpones the finality of the judgment until the motion to modify is overruled. It has been repeatedly held by this court that such is the effect of a motion for a new trial. The reason stated is that a motion for a new trial seasonably filed is a direct attack upon the judgment itself. The avoidance of appeals is good policy; hence until the trial court has had an opportunity to consider and rule upon asserted errors underlying, or in, its judgment, an appeal should not be taken; and to permit such consideration this court has announced that a motion for a new trial prevents the judgment from becoming final, and has held that the statute limiting the time for appeal does not apply while the judgment, thus suspended, is not final.

A motion to modify is a direct attack upon the judgment itself, and for like reasons has the same effect as a motion for new trial. When it happens that a judgment passes upon, or covers, matters not within the issues, or erroneously records the announced decision of the trial court, a correction will often prevent an appeal or lessen the questions to be presented by appeal, and the judgment should not become final for such purpose, if a seasonable request for correction is made, until the request is ruled upon. We are aware that this court held in Blaemire v. Barnes, 173 Ind. 659, 91 N. E. 232, that, while a motion for new trial has the effect stated, “other motions do not.” The right result was reached in the cause last cited because the motion relied upon there was a motion in arrest of judgment. Apparently a motion in arrest filed, as in the case cited, after judgment was rendered, could have no such effect. Such decision is modified to the extent that motions seasonably filed to modify a judgment do not have such effect. As to other motions not here involved, we decide nothing.

Appellees rely upon Thomas v. Thomas, 61 Ind. App. 101, 110 N. E. 573, as supporting their position. In that case the motion to modify was treated as a collateral attack upon the judgment.

This was an error, as the motion sought to materially change the judgment, and it was filed within the term at which judgment was rendered when the matter was in fiere, though the motion was supplemented after the term, and was therefore a direct attack thereon. The opinion in the Thomas Case concedes that such motions as are direct attacks, made under such circumstances, postpone the finality of the judgment.

We do not hereby hold that other and independent proceedings, such as suits instituted to set aside or vacate judgments, based upon facts not in issue in the original action, though such proceedings are direct attacks, postpone the finality of the judgment attacked. Such seek a new judgment upon the new matter, and the time for appeal therefrom is gauged by the time of the new judgment, or the overruling of a motion for a new trial in the new cause.

The objection that the effect we give to a motion to modify, filed within the term, is to unduly delay final judgment, is answered in Chandler v. Gloyd, 217 Mo. 394, op. 405, 116 S. W. 1073, 1075, when the court there says:

“The reason given that a party may thus delay the final disposition of the cause can be obviated by the court, by disposing of it at the term; but, if the court is of opinion that it deserves careful consideration and sufficient time does not remain at that term, we cannot see how the jurisdiction of the cause is lost.”

Our investigation demonstrates that the statement in 3 C. J. 1054, § 1051, to the effect that the general rule that a motion to vacate or modify does not postpone finality, is not correct. Many of the decisions cited in support thereof are distinguishable.

The motion to dismiss is overruled.

In this action appellee sued appellant for damages for the destruction and failure to reconstruct a private farm crossing, which had been constructed by one of appellant's predecessors; it being alleged that said predecessor had agreed to construct and maintain such crossing in consideration of a conveyance by appellees' remote grantor of a 40-foot right of way. Said deed contained a covenant reading, “Grantees also to make and maintain a farm crossing.”

Said crossing had been maintained by appellant and its predecessors from the time of its construction until November 20, 1909.

It is alleged that appellant's track and roadbed so divided appellees' land as to leave the larger tillable portion of the farm on one side thereof, and the house and other improvements on the other side thereof, so that appellees have no means of access from one part of the farm to the other.

The second paragraph of complaint in all essential respects is similar to the amended and supplemental first paragraph, except that it suggests a different measure of damages, and omits to allege the cost of constructing a crossing made necessary by changed conditions.

The demand in the amended and supplemental first paragraph of complaint is for $7,000, the cost of constructing a suitable crossing, and $4,000 damages caused by the loss of the use of their said lands.

The appellees prior to the bringing of this action demanded that appellant rebuild said crossing and maintain same; that appellant refused, and still refuses, so to do.

A demurrer was filed by defendant to said amended and supplemental first paragraph of complaint for want of facts and was overruled.

An answer was filed in three paragraphs, the first tending to show that, after the execution of said deed and the construction of the original track upon the strip of land so deeded, the railroad company condemned a second strip of land for the purpose of building a double track; and that in said condemnation proceedings these plaintiffs were allowed damages on account of said appropriation of said additional strip; that same were paid; that in said condemnation proceedings no right was retained in or reserved to the said appellees to cross, or to have a crossing, over said strip of land so appropriated; and that appellees were forever enjoined from claimingor asserting any rights in said property so appropriated; that the claims of appellees now asserted are adverse to the right and title of appellant, and contrary to the judgment and decree entered in the condemnation proceedings; wherefore, appellant claims that appellees are not entitled to recover.

The second paragraph of answer was a verified general denial filed to each paragraph of the complaint.

The third paragraph of answer is said by appellant to be a plea of no consideration. This paragraph alleges that, for more than 15 years prior to said deed, appellant's predecessor had maintained this railroad, operated between Logansport, Ind., and Columbus, Ohio, upon the land described in said deed, and had used the same in interstate commerce for general railroad purposes; and in fact early in 1869 said railroad was so located, said land taken and appropriated for public purposes and used in the operation of said road, and had continuously been so used. To the first paragraph of answer to the amended and supplemental complaint, and the third paragraph of answer to both paragraphs of complaint, a demurrer for want of facts was filed and sustained. Upon the issues thus formed, the cause was tried and a verdict returned against appellant in the sum of $2,500 for the loss of the enjoyment of their lands east of the right of way; and the jury further found in the same verdict “for the plaintiffs, and against the defendant, and that the cost of the construction of a suitable and proper construction will be $2,400.”

Defendant's motion for a venire de novo, its motion for a new trial, its motion in arrest of judgment, as to the first paragraph of complaint and the entire complaint, its motion to modify the judgment, were each overruled, and each of said rulings is here assigned as error, and in addition thereto it is assigned that the Wabash circuit court had no jurisdiction over the subject-matter involved and no jurisdiction to render the judgment herein appealed from.

And it is further assigned that the court erred in overruling defendant's demurrers to the respective paragraphs of plaintiffs' complaint, and in sustaining plaintiffs' demurrer to the first and third paragraphs of defendant's answer.

Appellant's first point is that the Wabash circuit court has no jurisdiction of the subject-matter of this action, because the action is to recover for an alleged injury to real property situated in Grant county. It would be sufficient answer to this proposition to say that the cause was pending in Wabash county because appellant procured a change of venue from Grant county, except that appellant asserts that the cause originated in Wabash county.

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