11 N.E.2d 58 | Ind. Ct. App. | 1937
Patrick B. Smith died testate on August 15, 1931, and The First National Bank of Hartford City, Indiana, who was named as executor in decedent's will, qualified as such on August 19, 1931, and so acted until its resignation September 9, 1933.
On August 31, 1931, a suit was filed in the Blackford Circuit Court to contest decedent's will and on change of venue the cause was sent to the Grant Circuit Court where the said will was declared invalid on the ground that the testator was a person of unsound mind.
Thereafter the executor, the appellee here, filed a partial report in the decedent's estate and on September 9, 1933, filed a final report and resigned as executor. To the partial and final reports Andrew Smith, an heir of decedent, filed amended and supplemental exceptions. Upon the issues joined by these reports and exceptions thereto the cause was submitted to the court, who found for the executor on both its partial and final reports and against said exceptor on each and all of his exceptions and judgment was entered accordingly on June 21, 1934.
Exceptor then filed his motion for a new trial within the time fixed by statute and on November 15, 1934, by *301 leave of court, filed an amended motion for new trial which amended motion assigned as the grounds therefor not only that the finding of the court was not sustained by sufficient evidence and that it was contrary to law, which grounds were contained in the original motion, but also the ground of newly discovered evidence. Exceptor's amended motion for new trial was overruled and this appeal was attempted.
There is no provision in our statutes for the filing of an amended or supplemental motion for new trial after the time for the filing of a motion for new trial has expired (Acts 1-3. 1881, Sp. Sess. ch. 38, p. 240, as amended Acts of 1909, ch. 165, § 1, p. 400; Acts of 1911, ch. 239, § 1, p. 42, being § 2-2401 to § 2-2405 Burns 1933, inclusive, § 368 to § 372, inclusive, Baldwin's 1934), therefore such amended or supplemental motion is unauthorized and should be treated as never having been filed and no question is presented for consideration on any alleged error predicated upon the action of the court in overruling such motion.
The record discloses that there was a motion for new trial filed within the time fixed by law which motion is still pending and on which the trial court has made no ruling and until there is a ruling thereon there is no final judgment in this cause from which an appeal to this court will lie, hence this appeal is dismissed. *302
