82 N.E.2d 245 | Ind. | 1948
On February 27, 1947, the appellant was convicted of forgery in the Vanderburgh Circuit Court. It is from this conviction this appeal is prosecuted. More than thirty days after the verdict, to-wit: July *554 28, 1947, the trial court permitted the appellant to file his verified motion for a new trial which was overruled on the same day. The only assignment of error is the ruling on this motion.
It is our opinion this motion, coming more than thirty days after the verdict, was filed too late. § 9-1903 Burns' 1933, 1942 Replacement. Morton v. State (1935),
This is not a case where the court can treat this motion as a petition for a writ of error coram nobis as was done in the case of Sharp v. State (1939),
It is true that for fraud, surprise, accident, mistake or excusable neglect, courts of general jurisdiction have the power after term to set aside a judgment merely to give the 3, 4. litigant an opportunity to file a regular motion for a new trial. Globe Mining Co. v. Oak Ridge Coal Co.
(1922),
At a time when this court erroneously thought it had original jurisdiction of coram nobis proceedings, it ordered and authorized a trial court to receive and act upon what it termed a "motion for a new trial." Partlow v. State (1924),
This right to a new trial or the right to file a motion for a new trial can only be established and adjudicated by an orderly proceeding in the trial court which is adversary, and, as 5. we have seen, equitable in its nature, and must be distinguished from proceedings which seek a new trial by way of coram nobis. For facts which warrant the granting of a new trial by way of coram nobis see Sanders v. The State (1882),
The entire record is before us. It shows conclusively that this motion was a regular statutory motion for a new trial and was made and done without a trial or adjudication of appellant's right to file same after the statutory period had expired.
This same matter was once before this court on another question. See State ex rel. Walker v. Youngblood, Judge
(1947),
For the reason that the motion for a new trial was filed too late, no question is presented and the judgment is affirmed.
NOTE. — Reported in