Thomas v. Thomas

• Decision Date: 07 December 1915
• Docket Number: No. 9345.,9345.
• Citation: 61 Ind.App. 101,110 N.E. 573
• Parties: THOMAS v. THOMAS.
• Court: Indiana Appellate Court

61 Ind.App. 101

110 N.E. 573

THOMAS

v.THOMAS.

No. 9345.

Appellate Court of Indiana, Division No. 1.

Dec. 7, 1915.

Appeal from Circuit Court, Porter County; A. D. Bartholomew, Judge.

Action by Florence Glover Thomas against Eugene H. Thomas.Judgment for defendant, and plaintiff appeals.On motion to dismiss the appeal.Motion sustained, and appeal dismissed.

Otto J. Bruce and W. Vincent Youlsey, both of Crown Point, for appellant.J. A. Gavit and R. C. Martin, both of Hammond, for appellee.

FELT, J.

Appellee moves to dismiss this appeal on the ground that the appeal was not perfected within 180 days from the time the judgment was rendered.The case was a suit for support, in which judgment was rendered for appellee on March 28, 1914.On the same day appellant filed her motion for a new trial, and it was overruled.Thereupon, on the same day, appellant filed a motion to modify the judgment so as to provide a reasonable allowance for the support of herself and infant child.On June 28, 1915, at a subsequent term of the court, appellant filed a supplemental motion to modify the judgment to secure such allowance, and the court on that day overruled the motion to modify the judgment, and the motion to modify was by order of the court made a part of the record without bill of exceptions.The transcript of the proceedings was filed in the office of the clerk of this court on July 23, 1915.

If the appeal should have been perfected within 180 days from the time the motion for a new trial was overruled, the motion to dismiss must be sustained, for the transcript was not filed in this court until more than a year after that time.Appellant concedes this to be the general rule, but claims that the final judgment, within the meaning of our statute authorizing appeals, was not rendered until the motion to modify the judgment was overruled by the court.

The statute(section 672, Burns 1914) provides that appeals “must be taken within 180 days from the time the judgment is rendered.”In speaking of this statute before amendment-changing the time from one year to 180 days-our Supreme Court, in Blaemire v. Barnes, 173 Ind. 657, at pages 658, 659, 91 N. E. at page 232, said:

“It has been held by this court, however, under said statute, that when the motion for a new trial is filed after the judgment is rendered, but within the time allowed by law, an appeal may be taken under said section within one year from the time judgment overruling the motion for a new trial is rendered.New York, etc., R. Co. v. Doane(1886)105 Ind. 92[4 N. E. 419];Colchen v. Ninde(1889)120 Ind. 88[22 N. E. 94].Other motions will not have the effect of postponing the time for taking the appeal Ewbank's Manual, § 101: Joyce v. Dickey(1885)104 Ind. 183[3 N. E. 252].”

In Corpus Juris, vol. 3, p. 1054, § 1051, it is said:

“In some jurisdictions the pendency of a motion to vacate and set aside or modify a judgment is held to suspend the operation of the judgment, so that it does not take final effect for the purpose of an appeal or writ of error until the motion has been disposed of.The general rule, however, is that the pendency of a motion to vacate or modify a judgment or order does not relieve one from the statutory requirements to appeal within the prescribed time.”

There are numerous decisions to the effect that a party appealing must...