Hunt v. York

123 Ind. App. 150 | Ind. Ct. App. | 1952

Royse, C. J.

— This is an attempt to appeal from a judgment of the Juvenile Court of Howard County against appéllant under the “Children Born out of Wedlock” statute, §3-628, et seq., Burns’ 1946 Replacement.

The only error assigned in this court is the overruling of appellant’s motion for a new trial. The record discloses judgment was entered in the court below on February 15, 1952. Appellant’s motion for a new trial was filed March 17, 1952.

Section 3-640, Burns’, supra, provides in part as follows:

“If the finding of the court, or the verdict of the jury, be for or against the defendant, the party aggrieved thereby may file a motion for a new hearing within ten (10) days after such finding or verdict.”

This provision is controlling in actions of this kind. State ex rel. Gannon v. Lake Circuit Court et al. (1945), 223 Ind. 375, 391, 61 N. E. 2d 168; Kessler v. Williston (1947), 117 Ind. App. 690, 75 N. E. 2d 676; Parliament v. Taber (1951), 121 Ind. App. 559, 561, 100 N. E. 2d 902.

Appellee filed her motion to dismiss because the motion for a new trial was filed too late. This is not jurisdictional, and therefore not grounds for dismissal. However, inasmuch as the only assignment óf .error here is the overruling of the motion for a new. trial;, and that motion was filed too late, no question is-, presented here. Therefore, the judgment is affirmed.

Note. — Reported in 108 Ñ. E. 2d 903.