174 Ind. 249 | Ind. | 1910
Appellee brought this action under §589 Burns 1908, §563 R. S. 1881, by filing- a complaint for a new trial in the Adams Circuit Court, assigning- causes for a new trial discovered after the term at which the verdict was returned and judgment rendered thereon in favor of appellants. Appellants’ demurrer for want of facts to the complaint was overruled by the court. The venue of the cause was changed to the court below, where a trial resulted in a finding in favor of appellee, and, over a motion by appellants for a new trial, judgment against them granting appellee a new tidal of said cause was rendered.
Appellants, by the assignment - of errors, challenge the sufficiency of the complaint for want of facts and call in question the action of the court in overruling their demurrer to the complaint.
2. It appears from the complaint that appellants brought a proceeding before the board of commissioners of Adams county on April 16, 1904, to establish a public ditch; that such proceedings were had that said ditch was established by said board of commissioners; that appellee, Johnson, who was a defendant in
The statute providing for granting new trials is as follows: “A new trial may be granted in the following eases: First. Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court, or abuse of discretion, by which the party was prevented from having a fair trial. Second. Misconduct of the jury or prevailing party. Third. Accident or surprise, which ordinary prudence could not have guarded against. Fourth. Excessive damages. Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property. Sixth. That the verdict or decision is not sustained by sufficient evidence, or is contrary to law. Seventh. Newly discovered evidence, material for the party applying, which
Section 589 Burns 1908, §563 R. S. 1881, under which this proceeding ivas brought, reads as follows: “Where causes for new trial are discovered after the term at which the verdict or decision was rendered, the application may be made by a complaint filed with the clerk, not later than the second term after the discovery, on which a summons shall issue, as on other complaints, requiring the adverse party to appear and answer. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the court upon the evidence produced by the parties. But no such application shall be made more than one year after the final judgment was rendered.”
We conclude, therefore, that the failure of the reporter, from inability or other cause, to furnish a transcript of the evidence was not a ground for a new trial under §§585, 589, supra; Butts v. Anderson (1907), 19 Okla. 367, 91 Pac. 906; Peterson v. Lundquist (1908), 106 Minn. 339, 119 N. W. 50; Dumbarton Realty Co. v. Erickson (1909), 143 Iowa 677, 120 N. W. 1025 and cases cited; Morin v. Claflin (1905), 100 Me. 271, 61 Atl. 782; Lidgerwood Mfg. Co. v. Rogers (1889), 56 N. Y. Sup. Ct. 350, 4 N. Y. Supp. 716. See, also, Collins v. State (1903), 66 Kan. 201, 71 Pac. 251, 97 Am. St. 361, 60 L. R. A. 572; Etchells v. Wainright (1904), 76 Conn. 534, 57 Atl. 121; Johnson v. Smith (1904), 78 Vt. 145, 62 Atl. 9., 2 L. R. A. (N. S.) 1000; Ogle v. Potter (1900), 24 Mont. 501, 62 Pac. 920.
The judgment of the court below is therefore reversed, with instructions to hold said complaint for a new trial insufficient and for further proceedings not inconsistent with this opinion.