Ferger v. Wesler

35 Ind. 53 | Ind. | 1871

Pettit, J.

Appellee recovered against the appellant a judgment for the possession of real estate. Within a year of the rendition of the judgment, the appellant paid the costs and filed in the cleric’s office a motion for a new trial, as of course, under section 601 of the code, and gave notice that said motion would be heard before the judge in vacation. The judge refused to grant the new trial in vacation. This is assigned for error, but it was not error. The section cited says, the court shall vacate the judgment and grant a new trial. “ When a law authorizes or contemplates the doing of a judicial act, it is and must be understood to mean that the court, in term time, may or must do it, and the judge, in vacation, cannot, unless the power is expressly conferred upon him.” Reyburn v. Bassett, McCahon, 86.

y. Schwartz, for appellant. W. H. Bainbridge and F. Adkmson, for appellee.

Thus matters rested till more than a year after the rendition of the judgment, when the appellant'moved the court in term time, on the written application filed in vacation, to vacate the judgment and grant him a new trial, as of right. The appellee objected to the new trial, for the reason thafmore than one year had elapsed since the final judgment was rendered; and the court sustained the objection, and overruled the motion for a new trial. This ruling is assigned for error. There was no error in this. The party who seeks a new trial under section 601 of the code, must pay the costs, make application to the court, get its order granting a new trial, or its refusal to do so, within one year after the judgment is rendered, or he will be too late in such a proceeding as this.

The judgment is affirmed, at the costs of the appellant.^*

* Petition for a rehearing overruled.