Thompson v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 22 November 1937
• Docket Number: 15985.
• Citation: 11 N.E.2d 81,105 Ind.App. 97
• Court: Indiana Appellate Court
• Parties: THOMPSON v. CLEVELAND, C., C. & ST. L. RY. CO.

11 N.E.2d 81

105 Ind.App. 97

THOMPSON v. CLEVELAND, C., C. & ST. L. RY. CO.

No. 15985.

Appellate Court of Indiana, in Banc.

November 22, 1937

Vaughan & Vaughan, of La Fayette, Fraser & Isham, of Fowler Chas. D. Lesley, of La Fayette, and Carl M. Franceschini, of Fowler, for appellant.

Stuart Stuart & Devol and Cable G. Ball, all of La Fayette, and Burton B. Berry and Wilbur G. Nolin, both of Fowler, for appellee.

BRIDWELL Judge.

Appellant brought this action against the appellee and one Robert Pannell, and by his complaint sought to recover a judgment against both of the defendants thereto, the complaint charging that the negligence of the defendants caused the death of appellant's minor son, whose death resulted from injuries sustained by him when an automobile in which he was riding, and a train operated by appellee through its duly authorized agent, the defendant Robert Pannell, collided.

After the issues were closed the cause was submitted for trial by a jury and the following verdict was returned: "We the jury find for the plaintiff against the defendant, Cleveland Cincinnati, Chicago & St. Louis Railway Company, and fix the amount of his damages at $7,000.00, and we further find for the defendant, Robert F. Pannell." Judgment on the verdict in favor of the defendant Pannell was thereafter rendered on October 17, 1936, the date of the return of the verdict. Appellant, on November 14, 1936, filed his motion for a venire de novo, and his motion for a new trial as to both defendants. Appellee moved for a dismissal of the cause as to it. On December 23, 1936, the court overruled appellant's motion for a venire de novo, and overruled his motion for a new trial, appellant reserving an exception to each of said rulings. The separate motion of appellee to dismiss was sustained and appellant excepted. A judgment of dismissal as to said defendant was rendered. This appeal followed.

Appellee has entered its special appearance and filed a verified motion to dismiss the appeal, asserting therein that "this court has no jurisdiction of this appeal for the reason that one of the two defendants in the trial court to-wit: Robert F. Pannell, who had a verdict of the jury in his favor and against the appellant (plaintiff) and who recovered a judgment on said verdict against appellant and is therefore adverse to appellant and interested in maintaining the verdict and judgment appealed from, and a necessary party on appeal, is not made a party to this appeal as appellee, nor is said defendant named in appellant's assignment of errors filed herein on March 23, 1937."

The record substantiates the averments of the motion to dismiss. Appellant's assignment of errors does not attempt to make the said Robert F. Pannell a party appellee, and he is not named, or in any manner referred to, in the caption or elsewhere in said assignment.

Pending action on said motion to dismiss, the appellant, on October 26, 1937, filed his petition for "leave to amend the said assignment of errors by writing therein as a party appellee the name of Robert Pannell." The record discloses that appellant's motion for a new trial was overruled on December 23, 1936, and that final judgment against appellant was rendered on that day. Our statute (Burns' Ann.St. 1933, § 2-3202), effective when this appeal was attempted to be consummated, provides that an appeal may be taken within 180 days from the date of final judgment. More than 180 days have elapsed since that date, and it has been repeatedly held by the courts of review of this state that the court is without power to grant leave to amend an assignment of errors after the time for perfecting an appeal has expired. See Voss v. Balz (1932) 203 Ind. 221, 179 N.E. 552; In re Wiles (In re Gibbs) (1935) 208 Ind. 271, 195 N.E. 572, 573, and authorities therein cited.

The petition of appellant to amend his assignment of errors is denied in line with the many decisions of this state that this court is without authority to do otherwise.

Appellant, in his brief in opposition to the motion to dismiss, contends that such motion should be overruled for the reason that "said motion is based upon a highly technical error," and that the appellee has failed to show wherein it has been harmed; that the assignment of errors should not be held to be the complaint in the Appellate Court because no pleadings are required in the Appellate Court. A further contention is best evidenced by the following quotation from said brief: "The appellant is not unmindful of the decision of the Supreme Court of Indiana in the case of Voss v. Balz, 203 Ind. 221, 179 N.E. 552. However, it is respectfully submitted that this decision and others following it, or other like decisions, are contrary to reason and are not justified by any interpretation of any existing statute pertaining to an assignment of errors."

While it is true that our statute relating to assignment of errors (Burns' Ann. St.1933, § 2-3225 [section 502 Baldwin's Ind.St.1934]) does not...