Walker v. State

• Decision Date: 17 November 1948
• Docket Number: 28385.
• Citation: 82 N.E.2d 245,226 Ind. 552
• Parties: WALKER v. STATE.
• Court: Indiana Supreme Court

82 N.E.2d 245

226 Ind. 552

WALKER v. STATE.

No. 28385.

Supreme Court of Indiana

November 17, 1948

Appeal from Vanderburgh Circuit Court; Nat H. Youngblood judge.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, 1st Asst. Atty Gen., and Merl M. Wall, Deputy Atty. Gen., for appellant.

James C. Cooper, Public Defender, of Rushville, for appellee.

STARR Judge.

On February 27, 1947, the appellant was convicted of forgery in the Vanderburgh Circuit Court. It is from this conviction this appeal is prosecuted. More than thirty days after the verdict, to-wit: July 28, 1947, the trial court permitted the appellant to file his verified motion for a new trial which was overruled on the same day. The only assignment of error is the ruling on this motion.

It is our opinion this motion, coming more than thirty days after the verdict, was filed too late. Section 9-1903, Burns' 1933, 1942 Replacement; Morton v. State, 1935, 209 Ind. 159, 198 N.E. 307.

This is not a case where the court can treat this motion as a petition for a writ of error coram nobis as was done in the case of Sharp v. State, 1939, 215 Ind. 505, 19 N.E.2d 942. The allegations in this motion are wholly insufficient for that purpose. It is an ordinary motion for a new trial.

It is true that for fraud, surprise, accident, mistake or excusable neglect, courts of general jurisdiction have the power after term to set aside a judgment merely to give the litigant an opportunity to file a regular motion for a new trial. Globe Mining Co. v. Oak Ridge Coal Co., 1922, 79 Ind.App. 76, 134 N.E. 508; Globe Mining Co. v. Oak Ridge Coal Co., 1931, 204 Ind. 11, 177 N.E. 868. It is also the law that courts of general jurisdiction, by way of their equitable powers, may grant a new trial after term. Indianapolis Life Ins. Co. v. Lundquist, 1944, 222 Ind. 359, 53 N.E.2d 338. All these instances, however, where motions for a new trial have been permitted after term and after the statutory time has expired and instances when a new trial has been ordered, are cases where through happenings or events which have no connection with the actual trial and which have not been brought about by the fault of the litigant, his time for filing such motion has expired or, in case of a new trial, it has become impossible, due to these happenings or events, for him to perfect the record for an appeal.

At a time when this court erroneously thought it had original jurisdiction of coram nobis proceedings, it ordered and authorized a trial court to receive and act upon what it termed a 'motion for a new trial.' Partlow v State, 1924, 195 Ind. 164, 144 N.E. 661, 664, 30 A.L.R. 1414. Clearly this was a case where a writ of coram nobis should have been sought in the trial court. This case has been virtually overruled in Stephenson v. State, 1932, 205 Ind. 141, 196, 179 N.E. 633, 186 N.E. 293, and criticized in Bolton v. State, 1945, 223 Ind. 308, 60 N.E.2d 742, 158 A.L.R. 1057.

This right to a new trial or the right to file a motion for a new trial can only be established and adjudicated by an orderly...