William Deering & Co. v. Armstrong

• Decision Date: 04 January 1898
• Citation: 18 Ind.App. 687,48 N.E. 1045
• Court: Indiana Appellate Court
• Parties: WILLIAM DEERING & CO. v. ARMSTRONG.

18 Ind.App. 687

48 N.E. 1045

WILLIAM DEERING & CO.

v.ARMSTRONG.

Appellate Court of Indiana.

Jan. 4, 1898.

Appeal from circuit court, Boone county; R. R. Stephenson, Special Judge.

Action by William Deering & Co. against Francis W. Armstrong, administrator. Verdict for defendant. From an order striking out plaintiff's motion for a new trial, and refusing to permit a motion for new trial to be filed after judgment on the verdict, plaintiff appeals. Affirmed.

Robert W. Harrison and Henry C. Wills, for appellant. F. M. Goldsberry and J. G. Adams, for appellee.

WILEY, J.

This case was tried at the September term, 1896, before a special judge, the regular judge being disqualified by reason of a change of venue from him. There was a trial by jury, and a verdict for appellee. The verdict was returned September 16th. It appears from the record that the special judge who presided at the trial lived at Noblesville, in Hamilton county; that when the cause was finally submitted to the jury, and before the return of the verdict, it was agreed that one P. H. Dutch, a disinterested attorney, should receive the verdict in case of an agreement, and the special judge returned to his home. The September term of the Boone circuit court finally adjourned for the term October 12th, and the November term convened the first Monday of November, being the second day of the month. October 12th, a short time before the term finally closed, appellant presented to the clerk its motion and reasons for a new trial, which the clerk duly filed; but neither the clerk nor the appellant called the attention of the court thereto, and the court did not make an entry or memorandum thereof. At that time the regular judge was presiding. The special judge before whom the cause was tried did not return to said court until November 24, 1896, being the twentieth judicial day of the November term. On that day, while such special judge was occupying the bench, appellant, over appellee's objection, filed its motion and reasons for a new trial. December 8th appellee moved to strike this motion from the record, which was sustained by the court, and appellant excepted. Thereupon the court pronounced judgment on the verdict in favor of appellee. On the same day, before the same special judge, appellant offered to refile its motion for a new trial, which motion the court rejected, to which ruling appellant reserved an exception. These facts are all embraced in a bill of exceptions, and are properly presented for our consideration. Appellant has assigned error as follows: (1) The court erred in striking out appellant's motion for a new trial, filed October 12, 1896. (2) The court erred in refusing to allow appellant to file its motion for a new trial after judgment on the verdict.

Section 570, Rev. St. 1894 (section 561, Rev. St. 1881), provides that application for a new trial may be filed during the term at which the verdict is returned or the decision is rendered, except where the verdict is returned or the decision is rendered on the last day of the term; then such motion shall be filed on the first day of the succeeding term, whether regular or special. Section 571, Rev. St. 1894 (section 562, Rev. St. 1881), provides that the application must be made by motion upon written reasons filed at the time of making the motion. Appellant contends that, under the particular facts as here presented, it did all it was required to do, in the way of filing its motion for a new trial, to preserve its rights; that, as the special judge did not appear in the court below after the return of the verdict until after the term closed, it had no opportunity to do more than it did. We do not think this contention is well grounded. We judicially know...