36 Ind. App. 430 | Ind. Ct. App. | 1905
This is an action by appellee to recover benefits claimed to be due her through the membership of her husband in his lifetime in appellant’s relief department. A trial by the court upon issues formed resulted in a judgment in appellee’s favor. The questions presented in the argument are those arising under the motion for a new trial.
Construing §§570, 1443, supra, together, upon the authority of Rudolph v. Landwerlen (1893), 92 Ind. 34, 41, it must be held in the case at bar that the motion for a new trial must be regarded as if filed at the regular term at which the finding of the court was announced: It is held in that case that the statute makes the adjourned term a part of the regular term at which the adjournment was ordered, and that a motion for a new trial, filed during the adjourned term, where the finding was made at the regular term, is filed in time. See, also, Smith v. Smith (1861), 17 Ind. 75; Casily v. State (1869), 32 Ind. 62; Knight v. State (1880), 70 Ind. 375.
In McIntosh v. Zaring (1898), 150 Ind. 301, cited by counsel for appellee, a judgment was rendered on the last day of the term, a motion for a new trial was not made until the first day of the next regular term, and it was held the motion was too late, as a special term had been held in the meantime.
Appellee was appointed administratrix of her husband’s estate, and as such, in June, 1899, filed an intervening petition in the receivership case, asking that she might intervene as administratrix for the benefit of the children, and that she be permitted to wage the suit in such capacity for their benefit, and not otherwise. In the proceedings then had the court found that appellee was administratrix of her husband’s estate, “in which capacity she intervenes herein for the benefit of the widow and children of said Eobert M. Eay.” The court also found that the widow and next of kin were damaged in the sum of $7,500, for which amount judgment was rendered. This amount, with interest, was afterward paid to the administratrix.
It is not necessary to inquire whether the appointment of the receivers terminated the contract of employment Eay had with the appellant company, for the reason that it is shown that Eay was employed by the receivers, and was in
Judgment reversed, with instructions to grant appellant’s motion for a new trial.