Stanley v. Holliday

• Decision Date: 03 March 1888
• Docket Number: 13,016
• Citation: 16 N.E. 513,113 Ind. 525
• Parties: Stanley et al. v. Holliday
• Court: Indiana Supreme Court

16 N.E. 513

113 Ind. 525

Stanley et al. v. Holliday

No. 13,016

Supreme Court of Indiana

March 3, 1888

From the Lake Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to overrule plaintiff's motion, and for further proceedings not inconsistent with this opinion.

M. Wood and T. J. Wood, for appellants.

H. A Gillett, for appellee.

OPINION

Howk, J.

At the September term, 1885, of the court below, in an action then and there pending wherein appellee herein, Lavinia H Holliday, was plaintiff, and James R. Stanley and others were defendants, upon a final hearing of the issues joined therein the court found, adjudged and decreed that plaintiff's title, in and to certain described real estate in Lake county, should be quieted and forever set at rest as against defendants, as prayed for in her complaint. Afterwards, at the next ensuing November term, 1885, of such court, to wit, on the 9th day of December, 1885, the parties appeared, and upon the written motion of defendant James R. Stanley for a new trial of the issues in such action as of right under the statute, and upon the showing then made to the satisfaction of the court that defendants had paid up all the costs in such action, it was then and there "ordered and adjudged by the court that the judgment and decree heretofore entered in this cause, at the September term, 1885, of this court, be vacated and held for naught, and that a new trial be granted and the cause reinstated on the docket and take its old number." Afterwards, on the 2d day of February, 1886, being the second judicial day of the next ensuing February term, 1886, the plaintiff, appearing specially, and for the purpose only of her motion, moved the court, in writing, upon the affidavit of her attorney therewith filed, to set aside and annul its order herein, at its November term, 1885, vacating the judgment and decree in this case at the September term, 1885, of such court, upon the ground that such order of the November term was made in the absence and without the knowledge or consent of plaintiff, and that no notice whatever had been given plaintiff of such order, or of the granting of a new trial therein. Pending the consideration of this motion by the court, and at such February term thereof, defendants moved the court upon an affidavit then filed, showing that plaintiff herein was not a resident of the State of Indiana, for an order of publication of notice to plaintiff of the new trial granted in this cause. Afterwards, at the same term of the court, to wit, on the 3d day of March, 1886, the court, being sufficiently advised, overruled defendants' motion for an order of publication of notice to plaintiff, and sustained plaintiff's motion to set aside and annul the order of court at its November term, 1885, vacating its judgment and decree and granting defendants a new trial of this cause. To each of these rulings of the court, defendants excepted and filed their bill of exceptions. It was finally adjudged by the court that plaintiff recover of defendants "all costs of this action."

Errors are assigned here by defendants below, which call in question (1) the sustaining of plaintiff's motion to set aside and annul the order of court vacating its judgment and decree and granting defendants a new trial, and (2) the overruling of their motion for an order of publication of notice to plaintiff of the granting of a new trial of this cause.

If the first of these alleged errors is well assigned, it is so because defendants, who obtained the new trial of this cause, did not give plaintiff "ten days' notice thereof," before the February term, 1886, of the court below. Plaintiff's motion proceeds upon the theory that the order of the court vacating its judgment and decree in plaintiff's favor and granting defendants a new trial as of right, ought to be set aside and annulled upon the following grounds (and for no other specified cause), namely: "That such order was made in the absence and without the knowledge or consent of plaintiff, and (2) that no notice whatever has been given to plaintiff of such order, or of the granting of a new trial therein." It is certain, we think, that the order of the court, which plaintiff moved the court to set aside and annul, was an order which might lawfully be made "in the absence and without the knowledge or consent of plaintiff." We have often decided that the opposite party need not be notified of an application or motion for a new trial as of right, under the statute. Physio-Medical College v. Wilkinson, 89 Ind. 23; Whitman v. Weller, 39 Ind. 515; Murray v. Kelly, 27 Ind. 42.

But it is upon the second ground stated in plaintiff's motion namely, "that no notice whatever has been given plaintiff of such order, or of the granting of a new trial therein," that plaintiff's counsel claims in argument that the court below did not err in sustaining plaintiff's motion herein. Counsel contends that the ruling of the court in sustaining plaintiff's motion herein, is fully authorized by a fair construction of the provisions of section 1065, R. S. 1881. In that section of the statute it is provided as follows: "If the application for a new trial is made after the close of the term at which the judgment is rendered, the party obtaining a new trial shall give the opposite party ten days' notice thereof before the term next succeeding the granting of the application." In discussing the question of the proper construction of this section of the statute, plaintiff's counsel says: "It is confidently submitted that, as the statute now is, a party so obtaining an order for a new trial is bound to give such notice before the next term, or the right to such new trial is waived and gone. In other words, it is submitted that the statute, as now framed, is intended as a limitation of the time within which the new trial must be brought on, if at all." Section 1065, above quoted, which took effect on...