The Evansville And Richmond Railroad Company v. Maddux

• Decision Date: 18 February 1893
• Docket Number: 15,883
• Citation: 33 N.E. 345,134 Ind. 571
• Parties: The Evansville and Richmond Railroad Company v. Maddux, by Next Friend
• Court: Indiana Supreme Court

33 N.E. 345

134 Ind. 571

The Evansville and Richmond Railroad Company v. Maddux, by Next Friend

No. 15,883

Supreme Court of Indiana

February 18, 1893

Reported at: 134 Ind. 571 at 585.

From the Lawrence Circuit Court.

The judgment is affirmed.

M. F Dunn and G. G. Dunn, for appellant.

J Giles, J. A. Zaring and M. B. Hottel, for appellee.

Howard J. Coffey, C. J., dissents.

OPINION

Howard, J.

This is a proceeding to review a judgment. Appellee obtained judgment against appellant, in the sum of nine thousand dollars, for injuries alleged to have been received in an accident on a railroad construction train, on which appellee was an employe.

Appellant filed its complaint in review of said judgment, setting out as an exhibit the record of the original case. Appellee filed a demurrer to this complaint, which was sustained by the court. In this appeal, two errors are assigned, the sustaining of the demurrer to the complaint for review and the overruling of a motion by appellant asking the court to appoint a guardian ad litem for appellee, who was a minor and who appeared in the original case by his next friend, and also appears in this case by the same friend.

Of the second assignment it may be enough to say that proceedings in review, like those on appeal, are a continuation of the original case, and the parties remain the same. Sloan v. Whiteman, 6 Ind. 434; Douglay v. Davis, 45 Ind. 493; Works Prac., section 1050.

The demurrer to the complaint in review raises the question as to whether any error of law appears in the proceedings and judgment in the original case--appellant not claiming error for newly discovered matter. R. S. 1881, section 616.

A proceeding in review for error of law claimed, is in the nature of an appeal, and is to be tried by the record alone, the court which originally tried the case sitting as an appellate court in the review. The only errors, therefore, which could be considered in review were such as might have been tried here had the original case been appealed directly to this court. Works' Prac., section 1051; Elliott's App. Proced., section 769.

In the latter work is stated the doctrine of this court on the subject as given in American Ins. Co. v. Gibson, 104 Ind. 336, 3 N.E. 892, "The rules which govern in actions to review are, in the main, the same that govern in an appeal to this court. The errors that may be made available in an action to review are those that may be made available upon an appeal." See other authorities collected in note to section 769, App. Proced., supra.

The errors of law claimed in the complaint for review to have been made in the proceedings and judgment in the original case are those which question the sufficiency of the pleadings and verdict, and those which are embraced in the motion for a new trial.

It is contended by appellee that the motion for a new trial is not in the record, for the reason that it was not made in time.

Section 561, R. S. 1881, provides that "The application for a new trial may be made at any time during the term at which the verdict or decision is rendered; and if the verdict or decision be rendered on the last day of the session of any court, or on the last day of any term, then, on the first day of the next term of such court, whether general, special, or adjourned."

The terms "verdict" or "decision," as used in the statute, have reference to the finding upon the facts, the term "verdict" signifying the finding by the jury, and the term "decision" the finding by the court. The judgment or decree is not the decision, but follows, and is based upon the verdict of the jury or the decision of the court. Krutz v. Craig, Admx., 53 Ind. 561; Wilson v. Vance, Admx., 55 Ind. 394; Pennsylvania Co. v. Sedwick, 59 Ind. 336; Christy v. Smith, 80 Ind. 573; Rodefer v. Fletcher, 89 Ind. 563; Jones v. Jones, 91 Ind. 72; Dodge v. Pope, 93 Ind. 480.

The verdict in this case was rendered on the 17th day of December, 1889, being the fourteenth day of the December term, 1889, of the Lawrence Circuit Court. The court did not finally adjourn until the 26th day of December, 1889, being the last day of said term. The judgment was entered on said last day of the term. There was no offer to file a motion and reasons for a new trial during the December term, 1889, of said court, nor until February 3d, 1890, being the first day of the February term, 1890.

The complaint for review being for error of law appearing in the proceedings and judgment, and not for material new matter discovered since the judgment, it is evident that the motion for a new trial came too late, unless there was an agreement entered into between the parties extending the time within which the motion for a new trial and the giving of the reasons therefor might be filed. Krutz v. Craig, supra, and other cases cited.

In City of Evansville v. Martin, 103 Ind. 206, at p. 213, 2 N.E. 596, it is said: "The motion [for a new trial] was not filed during the term, nor was any agreement made extending the time for filing the motion, nor was any order made by the court, nor was the finding made on the last day of the term. It is clear, therefore, that there is no proper motion for a new trial."

Even the court could not give time beyond the term to make an application for a new trial, except by the agreement or waiver of the parties. Burnett v. Overton, 67 Ind. 557; Secor v. Souder, 95 Ind. 95.

Appellant does not contend that the motion for a new trial in this case was made in time, unless it shall appear that the time was extended by agreement; and appellant admits that the agreement claimed was not made in court, and that it was an oral agreement between the attorneys of the parties. The agreement, if any, was not entered of record by the court, and appellee denies that such agreement was made.

In American White Bronze Co. v. Clark, 123 Ind. 230, 23 N.E. 855, the court, in speaking of such an agreement by attorneys to extend the time for filing a motion for a new trial, said: "It would be exceedingly doubtful whether an attorney would have authority to bind his client by such an agreement, unless it was entered upon the minutes of the court, or made in conformity with the provisions of the statute. Section 968, R. S. 1881; Louisville, etc., R. W. Co. v. Boland, 70 Ind. 595; Hudson v. Allison, 54 Ind. 215."

When appellant, on the first day of the February term, 1890, of the court, offered to file a motion and reasons for a new trial, appellee objected to the filing of the motion, and moved that the motion for a new trial be rejected. Affidavits were filed by both parties, appellant contending and appellee denying that an agreement had been made to extend the time for filing the motion for a new trial. The court sustained the motion to reject the motion for a new trial. This, if not a refusal to allow the motion for a new trial to be filed, was at least in effect an overruling of the motion for a new trial. Blemel v. Shattuck, 133 Ind. 498, 33 N.E. 277.

The verdict was rendered at the December term, 1889, of the Lawrence Circuit Court, and before the last day of the session and the last day of the term; the motion for a new trial was not made during the term; it was not made for causes discovered after the term; there was no agreement entered in the minutes of the court that the time for filing the motion for a new trial should be extended to the next term; it is disputed whether even the attorneys of the parties made any such agreement outside the court, and even if they did it would not be good if objected to by either party; on the first day of the next term, when appellant moved the court to be allowed to file the motion, appellee objected.

There can be no doubt that the motion for a new trial came too late, and that the errors alleged and embraced in the motion are not in the record, and can not be considered. Northcutt v. Buckles, 60 Ind. 577; Gates v. Scott, 123 Ind. 459, 24 N.E. 257.

This leaves for consideration the rulings of the court on the pleadings and verdict in the original case.

The first paragraph of the original complaint states that the appellee Charles H. Maddux is under the age of twenty-one years, and that he prosecutes this suit by his next friend, Richard Maddux; that the appellant is now, and was, on the 2d day of October, 1889, the owner of and operating a railroad extending from Evansville to Seymour, and projected to Richmond, in this State, known as the Evansville and Richmond Railroad; that, on said 2d day of October, 1889, appellee was employed on a construction train of appellant on said railroad; that appellant had carelessly and negligently constructed its said railroad track and the bed thereof, in this, that it had failed to put sufficient ballast and ties under said track; that the ties were placed too far apart, and the track and road bed were uneven and too narrow, on account of which insufficient construction of said track and road bed the same was unsafe and dangerous for any train to run over; that appellant well knew that the construction of its said road bed and track was insufficient and unsafe for trains to run over, and that by running its construction train over said road, and compelling its employe, the appellee, to ride upon the same, it exposed him to extra hazardous risks; that appellee was young and inexperienced in railroading, and knew nothing of its dangers and hazards, and knew nothing, and, on account of his youth and inexperience in railroading, could know nothing of the extra hazard and dangerous risk to which he exposed himself when he undertook said employment; that neither at the time of his said employment, nor at the time of the accident hereinafter set out, had appellee any knowledge whatever...