Riley v. First Trust Co.

• Citation: 65 Ind.App. 577,117 N.E. 675
• Decision Date: 13 November 1917
• Docket Number: No. 9609.,9609.
• Parties: RILEY et al. v. FIRST TRUST CO.
• Court: Indiana Appellate Court

65 Ind.App. 577

117 N.E. 675

RILEY et al.

v.FIRST TRUST CO.

No. 9609.

Appellate Court of Indiana, Division No. 1.

Nov. 13, 1917.

Appeal from Circuit Court, Porter County; W. H. Loring, Judge.

Action by the First Trust Company, administrator, against Jennie Riley and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Walter J. Fabing, of Valparaiso, for appellants. D. E. Kelly and Daly & Freund, all of Valparaiso, for appellee.

BATMAN, J.

This action was brought by appellee to recover certain moneys, which it alleged belonged to it, as administrator of the estate of Joseph Crowe. The complaint was in a single paragraph, and was answered by a general denial. Trial by the court and judgment in favor of appellee. Appellants' assignment of errors in this court alleges: (1) The insufficiency of the complaint to constitute a cause of action against appellants or either of them; (2) error in sustaining appellee's motion to strike out, and in striking out appellants' separate and several motion for a new trial; (3) error in sustaining appellee's motion to amend and modify the judgment.

[1] Since the amendment of section 348, Burns 1908 (Acts 1911, p. 415, § 2), there has been no authority for assailing a complaint for want of facts for the first time by assignment of error in this court. It follows that no reversible error is presented by the first assigned error. Robinson v. State (1912) 177 Ind. 263, 97 N. E. 929;Stiles v. Hasler (1913) 56 Ind. App. 88, 104 N. E. 878;Indiana, etc., Co. v. Carnithan (1915) 109 N. E. 851;American, etc., Co. v. Williams (1916) 113 N. E. 252.

[2] Appellants predicate error on the action of the court in sustaining appellee's motion to strike out, and in striking out their motion for a new trial. It appears from the record that judgment was rendered in this cause on the 13th day of November, 1914, and that appellants filed their motion for a new trial in the office of the clerk of the Porter circuit court on the 10th day of December, 1914. Appellee filed its verified motion to strike appellants' said motion from the files on the ground that the court in which said cause was tried was in session at the time such motion for a new trial was filed, and that the same was not filed in open court. The filing of such motion has been recognized by this court as a proper procedure. Intermediate, etc., Co. v. Cunningham (1915) 59 Ind. App. 326, 108 N. E. 17. Appellants filed an affidavit of their attorney in opposition to appellee's said motion, in which it is alleged, as an excuse for not filing their said motion for a new trial in open court, that the term of court at which the decision and finding was announced in said cause had adjourned prior to 30 days after the rendition of such decision, and prior to the 10th day of December, 1914. Since the taking effect of section 587, Burns 1914, motions for a new trial, to be effective, must be filed within 30 days from the time when the verdict or decision is rendered. Under former sections, governing applications for a new trial, it was held that a motion for a new trial must be filed and presented to the court, and that filing the same with the clerk was not sufficient. Emison v. Shepard (1889) 121 Ind. 184, 22 N. E. 883;Levey v. Bigelow (1893) 6 Ind. App. 677, 34 N. E. 128;Deering & Co. v. Armstrong (1897) 18 Ind. App. 687, 48 N. E. 1045;Owen v. Harriott (1910) 47 Ind. App. 359, 94 N. E. 591. The present section, however, recognizes that the 30-day period for filing such motion may expire at a time when the trial court is not in session, and hence contains a provision for filing the same in the office of the clerk. A recent construction of this section limits the time when such motion may be so filed to the vacation period of such court. Allen v. Powell (1917) 115 N. E. 96.

[3] The record in this case does not disclose that the trial court was in vacation at the time of filing such motion for a new trial. The verified motion to strike the same from the files states that the trial court was in session at such time. The showing made by appellants does not deny such fact, but only asserts that the term of court at which the decision was rendered had adjourned prior to such time. Section 1461, Burns R. S. 1914, shows that the date on which such motion was filed was at a time when such court might have been in regular session. The trial court in...