Johnson v. Ballard, No. 17,952

No. 17,952 | Ind. | Apr 7, 1897

Monks, J.

The only errors assigned and not waived are: (1) “The court erred in overruling appellants’ motion for a new trial as of right. (2) The court erred in overruling appellants’ motion for a new trial.”

The record shows that appellants moved the court for a new trial as of right and filed their undertaking as required by section 1076, Burns’ E. S. 1894 (1064, E. g. 1881), which was approved. Before the court ruled upon said motion appellants filed their motion for a new trial, assigning numerous causes therefor, which motion the court overruled. It is not shown by the record, however, that the court ever ruled upon the motion for a new trial as of right.

It is evident, therefore, that the assignment of error that “the court erred in overruling appellants’ motion for g, new trial as of right” presents no question for the reason that the record does not show any such ruling was made. Besides, by filing the motion for a new trial for cause, before the court had ruled upon the motion for a ’ new trial as of right, appellants waived their right to have the last mentioned motion passed upon by the court.

The questions presented by the motion for a new trial for cause depend for their determination upon the evidence, which is not in the record. The motion for a new trial was filed and overruled November 2, 1895, at the geptember term of the court, which was after the rendition of the judgment. No time was given in which to file a bill of exceptions. The'bill of exceptions was filed January 15,1896, which was after the time allowed by law for the geptember term of said court.

It is settled law that when no time is given in which to file a bill of exceptions and it is signed and filed after the expiration of the term at which the motion for a new trial was overruled and judgment rendered, the same is not a.part of the record and cannot be considered. Campton v. State, 140 Ind. 442" court="Ind." date_filed="1895-02-27" href="https://app.midpage.ai/document/campton-v-state-7052341?utm_source=webapp" opinion_id="7052341">140 Ind. 442, 445; Engleman v. Arnold, 118 Ind. 81" court="Ind." date_filed="1889-03-09" href="https://app.midpage.ai/document/engleman-v-arnold-7049693?utm_source=webapp" opinion_id="7049693">118 Ind. 81, 82, and cases cited; Loy v. Loy, 90 Ind. 404" court="Ind." date_filed="1883-05-15" href="https://app.midpage.ai/document/loy-v-loy-7046380?utm_source=webapp" opinion_id="7046380">90 Ind. 404; Benson v. Baldwin, 108 Ind. 106" court="Ind." date_filed="1886-10-27" href="https://app.midpage.ai/document/benson-v-baldwin-7048555?utm_source=webapp" opinion_id="7048555">108 Ind. 106; Sohn v. Marion, etc., Gravel Road Co., 73 Ind. 77" court="Ind." date_filed="1880-11-15" href="https://app.midpage.ai/document/sohn-v-marion--liberty-gravel-road-co-7043917?utm_source=webapp" opinion_id="7043917">73 Ind. 77; Nye v. Lewis, 65 Ind. 326" court="Ind." date_filed="1879-05-15" href="https://app.midpage.ai/document/nye-v-lewis-7042927?utm_source=webapp" opinion_id="7042927">65 Ind. 326.

As the assignment of errors presents no question for our determination, the judgment is affirmed.