English v. English , 57 Ind. App. 157 ( 1914 )

Hottel, J.

This is an appeal from a judgment against appellant in an action for divorce brought by him. Appellant assigns as error the overruling of his motion for new trial. The transcript of the record filed in this court does not contain any record entry of the filing of such motion. It shows that the finding and judgment was rendered December 11, 1911, being the 25th judicial day of the November term, 1911, of the Pike Circuit Court; that on March 1, 1912, being the 23rd judicial day of the February term of said court, the cause was continued. It then shows the following entry: “And afterwards to wit, on the 27th day of April, 1912, being the 6th judicial day of the April term, 1912, of the Pike Circuit Court * * * the following proceedings were had: * * * Comes now the parties and the court having been duly advised on the motion heretofore filed for a new trial of this cause which motion is in words and figures as follows to wit: (The motion is here set out), overrules said motion to which ruling of the court the plaintiff excepts.”

Nothing appears from the record showing the filing of said motion, except the recital in the entry just quoted. Assuming without deciding that such a recital is sufficient to show a filing of such motion, the entry fails to show the time of its filing. So far as the record discloses the motion may have been filed too late and for this reason overruled.

It follows that no question is presented by the record, and the appeal is therefore dismissed.

Note. — Reported in 106 N. E. 643. See, also, 2 Cyc. 1052.