21 Ind. App. 416 | Ind. Ct. App. | 1899
It appears from the record before us thát on the 16th day of December, 1893, judgment of allowance of a claim' was rendered in the Huntington Circuit Court in favor of Emma A. Foster against Emma A. Foster, administratrix of the estate of Mary McConahey, deceased, the claim being upon a note purporting to be made by Mary McConahey payable to Emma A. Foster; an attorney having been appointed by the court to defend on behalf of the estate. On the 11th of April, 1894, there was filed in said court a complaint which is not in the transcript, an amended complaint having been filed after the venue had been changed to the court below. The amended complaint was entitled “Estate of Mary McConahey v. Emma A. Foster,” the entry of record relating to the amendment being entitled “Emma A. Foster, Adm. of the Estate of Mary McConahey, deceased, v. Emma A. Foster.” It was a complaint for a new trial for cause discovered after the term at which the verdict was rendered. An issue having been formed by answer in denial, the cause was tried by the court. It appears from an entry of record entitled “Emma A.
Rule three of the rules of this court requires the appellant to properly entitle the cause in the assignment of errors, and rule six provides that the assignment of errors shall contain the full naxnes of the parties. The assignment in this case is plainly defective. See Estate of Peden v. Noland, 45 Ind. 354; Estate of Thomas v. Service, 90 Ind. 128. The reports of the Supreme Court and of this Court contain cases in which the appellant or the appellee has been designated as the estate of a decedent named, and in which such defect has been ignored or expressly treated as waived. In Estate of Wells v. Wells, 11 Ind. 509, the court
The appellant, responding to the motion to dismiss, has proposed, upon leave granted, to amend the assignment. It plainly appears who will be affected by either an affirmance or reversal of the judgment, and that the affirmance or reversal will have the same effect as if the assignment were perfect. We think, therefore, we may, without formal amendment, examine and decide as if the assignment were properly entitled, and, accordingly, we overrule the motion to dismiss.
It is suggested on behalf of the appellee that an application for a new trial for cause discovered after the term at which the verdict or decision was rendered, provided for by the civil code, section 572, Burns’ R. S. 1894 (563, Horner’s R. S. 1897), is not al
Such an application by complaint for a new trial for cause discovered after the term is an independent action, in which issues may be formed and tried, and in which a motion for a new trial may be made. See Davis v. Davis, 145 Ind. 4. The motion for a new trial must be for some specific cause, as provided by the statute. It is not a sufficient assignment of cause in a motion for a new trial to state that the judgment is not supported by sufficient evidence, or that the judgment is contrary to law or that the judgment is contrary to the law and the evidence. Rodefer v. Fletcher, 89 Ind. 563; Rosenzweig v. Frazer, 82 Ind. 342. The motion for a new trial before us did not state any statutory cause for a new trial. The judgment is affirmed.