Wheeler v. Barr
| Decision Date | 14 April 1893 |
| Docket Number | 898 |
| Citation | 33 N.E. 975,6 Ind.App. 530 |
| Parties | WHEELER v. BARR ET AL |
| Court | Indiana Appellate Court |
From the Whitley Circuit Court.
Motion to dismiss overruled.
J. W Arthur, J. D. Wurtsbaugh and S. A. Haas, for appellant.
T. R Marshall and W. F. McNagney, for appellees.
The appellees have filed a motion to dismiss this appeal, and have assigned therefor two causes:
1. The record and assignment of errors were not filed in this court until the expiration of more than one year from the time of the rendition of the judgment.
2. That the transcript and alleged brief filed in support of the assignment of errors does not comply with the rules of this court touching the same.
The cause was tried in the court below, as the record shows, on the 16th day of September, 1891. The suit was upon a promissory note. The defendant Joshua Simon was defaulted, and judgment entered against him. The court found in favor of the other two defendants, Barr and Orndorff. The record further shows that on the same day the trial was had the plaintiff moved the court for a new trial as against the defendants Barr and Orndorff, which motion was overruled, and judgment rendered for said defendants. All this occurred on September 16. On the 28th day of September, 1891, as it appears from the transcript, the plaintiff filed a written motion for a new trial in the cause, and assigned therein certain causes. This motion was overruled, and an exception taken on the same day, and ninety days' time was given the plaintiff to file his bill of exceptions.
If the judgment from which this appeal is taken was in contemplation of law rendered on the 16th day of September, 1891, the appeal was not taken in time. The transcript was filed in this court September 22, 1892, which was six days after the expiration of the year provided by the statute, within which an appeal may be taken. The first motion must be taken to have been an oral one, as nothing is shown in the record to the effect that it was in writing. But it is required by the statute that the motion be in writing, and unless it is so it will not be considered an appeal. R. S. 1881, section 562; Whaley v. Gleason, 40 Ind. 405; Shover v. Jones, 32 Ind. 141; Stevens v. Nevitt, 15 Ind. 224.
The appellant had a right, at any time during the term, to present such a motion for a new trial as is sufficient in form and substance to enable him to have the questions raised ruled upon, both in the court below and in this court, and we know of no reason why he could not properly file a written motion after an oral one had been disposed of. He had until the close of the term to present his written motion for a new trial, and have a ruling on the same. The ruling upon the written motion was the final disposition of the case. The statute is that he shall have one year from the rendition of the judgment in which to take an appeal. R. S. 1881, section 633.
In legal contemplation, there is no final judgment until the motion for a new trial has been overruled, though...
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