Sikes v. Lefton, 19226

Docket NºNo. 19226
Citation166 N.E.2d 652, 130 Ind.App. 620
Case DateMay 10, 1960
CourtCourt of Appeals of Indiana

Page 652

166 N.E.2d 652
130 Ind.App. 620
Lewis Calvin SIKES, Appellant,
Sherman LEFTON, Jr., Appellee.
No. 19226.
Appellate Court of Indiana, Division No. 2.
May 10, 1960.
Rehearing Denied June 9, 1960.

[130 Ind.App. 621] F. Edward Dumas, Fowler, Steers, Klee, Jay & Sullivan, Indianapolis, for appellant.

Wallace & Wallace, James B. Wallace, Covington, Wallace, Wallace & Mason,

Page 653

Covington, Fraser & Isham, William S. Isham, James A. Gardner, Fowler, for appellee.

KELLEY, Judge.

Action for damages for the wrongful death of appellee's minor son. Trial by the court upon the issues made by appellee's complaint and appellant's answer in two paragraphs, one under the rules and the other alleging negligence by appellee's deceased son which was the proximate cause of his death. Upon request by appellant, the court entered its special findings[130 Ind.App. 622] of fact and stated its conclusions of law numbered 1 and 2. The findings and conclusions were favorable to appellee. Judgment for appellee and that he recover $8,354 from appellant together with costs.

Appellant filed his motion for a new trial containing five specifications, all but two of which are waived. The appellant's assignment of errors were that the court erred in overruling his motion for a new trial and that the court erred in its conclusion of law No. 1 and its conclusion of law No. 2. No other errors are charged.

The two unwaived specifications of the motion for a new trial as set forth in appellant's brief, are:

'1. That the verdict and judgment rendered herein are not sustained by sufficient evidence.

'2. That the verdict and judgment rendered herein are contrary to law.'

It has long been held by our courts that causes for a new trial, alleged as above, are not statutory causes for a new trial. See Rosenzweig v. Frazer, 1882, 82 Ind. 342, 343; Rodefer v. Fletcher et al., 1883, 89 Ind. 563, 564; Greeson v. Sloan (1933), 97 Ind.App. 687, 688, 689, 187 N.E. 841, and cases cited; Adkins v. State of Indiana, 1955, 234 Ind. 81, 82, 83, 123 N.E.2d 891, and cases cited. In the latter mentioned case there was a dissent on the question by two of the five members of the Supreme Court. In the dissent it is said that the words 'and judgment' are mere surplusage. However, the prevailing opinion holds otherwise. We are not at liberty to transgress the holding of the Supreme Court on this question and, therefore, must conclude that appellant has presented no question by said...

To continue reading

Request your trial
4 cases
  • Ramey v. Urban, 20443
    • United States
    • Indiana Court of Appeals of Indiana
    • October 6, 1967 question either to the trial court or on appeal. Watson v. Watson (1957), 127 Ind.App. 591, 144 N.E.2d 529; Sikes v. Lefton (1960), 130 Ind.App. 620, 166 N.E.2d 652; Adkins v. State (1955), 234 Ind. 81, 123 N.E.2d 891; 4 Lowe's Rev. Works and Practices, Sec. 61--34, p. In Watson v. Watso......
  • Bodkin v. Edgcomb, 20010
    • United States
    • Indiana Court of Appeals of Indiana
    • May 26, 1964
    ...of the asserted error that the facts which are properly within the issues have been fully and correctly found. Sikes v. Lefton (1960), 130 Ind.App. 620, 623, 166 N.E.2d 652. As a general rule, where the court states as a conclusion of law, that the law is with the defendant, all contrary co......
  • Shuman v. Hauk, 20627
    • United States
    • Indiana Court of Appeals of Indiana
    • February 14, 1968
    ...for a new trial.' See also, Warren v. State Farm Mutual Auto. Ins. Co. (1964), 136 Ind.App. 444, 202 N.E.2d 170; Sikes v. Lefton (1960) 130 Ind.App. 620, 166 N.E.2d 652. The foregoing is also true as concerns Appellants' third specifications for a new trial, since application for a new [142......
  • Warren v. State Farm Mut. Auto. Ins. Co., 20078
    • United States
    • Indiana Court of Appeals of Indiana
    • November 20, 1964
    ......2-2401, Pt. 1, Vol. 2, Burns' Stat.Ann.1946 Repl.         In a recent case Sikes v. Lefton (1960), 130 Ind.App.[136 INDAPP 447] 620, 166 N.E.2d 652 decided by this court, the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT