27 Ind. App. 677 | Ind. Ct. App. | 1901
— A demurrer was sustained to appellant’s complaint to review a judgment, and this ruling is assigned as error.
It is averred in the complaint to review that the amended cross-complaint was insufficient to authorize a personal judgment against appellant; that the court erred in going to trial on the amended cross-complaint without appearance, service, default, or issue thereon as to appellant; that no appointment or qualification of the special judge is shown; error in overruling the motion for a new trial, and in failing to render any judgment on the complaint.
A proceeding under §§627, 628, Burns 1901, to review a judgment for error of law is in the nature of an appeal and is to be tried by the record alone. It is a substitute for the remedy by appeal. A party may appeal -to the appellate tribunal, or he may file in the circuit court a complaint for review, and the adoption of one of these remedies waives the other. The review here sought is not for mar terial new matter discovered since the rendition of the judgment, but is for error of law appearing in the proceedings and judgment. ' In the review proceedings in such case the trial court, sits as an appellate court, and the only errors that can be considered in such proceedings are such as might have been considered in this court, had the original case been appealed here directly. Traders Ins. Co. v. Carpenter, 85 Ind. 350, and cases cited; Clark v. Hillis, 134 Ind. 421, and cases cited; Evansville, etc., R. Co. v. Maddux, 134 Ind. 571; Kiley v. Murphy, 7 Ind. App. 239.
The averments of the cross-complaint are to the effect that the land was conveyed to Bosson as trustee for appellant, and in the deed of conveyance, accepted by Bosson, as trustee, and appellant, the payment of the mortgage held by Brackin, as trustee, was assumed and agreed to be paid by Bosson as such trustee. This averment is sufficient, to admit proof of the assumption of the Brackin mortgage by appellant. The deed of conveyance', or a copy, containing this assumption, should have been filed with the cross-corn-
It is further argued that the court erred in going to trial on the amended cross-complaint without appearance, service, default, or issue thereon. It does not affirmatively appeal’ that this was done, and from the transcript of the proceedings in the original action we must presume that this was not done. On July 1st, as shown by a record entry, the parties were in court; the fifth paragraph of Brackin’s answer and his cross-complaint were filed; appellant filed replies to the answers, and the cause on the cross-complaint was continued as to the Watts and McDermitts, but “cause being at issue is now submitted to the court for trial”. This was all on July 1st. Afterwards appellant appeared and filed a motion for a new trial assigning as reasons that the finding was contrary to the law and the evidence. At this time judgment had been entered on the finding. No request was then or thereafter made that the judgment be in any way modified or set aside because there had been no appearance, service, or default. Appellant at that time asked relief in that it be granted a new trial on the ground only that the finding was contrary to the law and the evidence. Talcing the transcript of the proceedings as a whole we can not say that it shows there was no appearance to the cross-complaint.
It is also argued that it is not shown that the special judge had authority to act. All the proceedings appear to have been had by the Blackford Circuit Court, until the last record entry, which is signed by a special judge. .Something is said in argument about the case at different stages having been before two special judges, but no such condition
As no attempt was made to put the evidence in the record, the alleged error of the court in overruling the motion for a new trial asked on the ground that the finding was contrary to the evidence and the law presents no question. Hancher v. Stephenson, 147 Ind. 498.
The effect of the finding by the court was a finding against appellant on its complaint. Appellant has not shown how it could possibly be harmed by the failure of the court to render judgment on the complaint.
Judgment affirmed.