Wisconsin Lumber & Coal Co. v. Wall

This is the second attempted appeal of this case. On the former attempted appeal the cause was dismissed for want of jurisdiction, it appearing that the cause had not been fully disposed of. See 84 Ind. App. 642, 151 N.E. 830. After said appeal had been dismissed the American State Bank — the party as to whom the issues remained undetermined at the time of said attempted appeal — dismissed its cross-complaint and a judgment for costs was rendered against it on March 31, 1927, thus disposing of all of the issues as to all parties. April 11, 1927, this appellant filed its motion for a new trial. This motion was, upon motion of counsel for the appellees, stricken from the files on June 16, 1927, and thereupon an appeal was prayed to this court and time was given within which to file the appeal bond the amount thereof being fixed and the surety thereon named and approved; time was also given within which to file bill of exceptions. The bond was filed within the time given and the transcript was filed in this court October 14, 1927.

The record discloses that this cause had been tried by the court and the finding made on November 24, 1924, and that upon the same day a judgment was rendered and all matters disposed of except as to the cross-complaint of the American State Bank herein before referred to. Thereafter, on December 17, 1924, the appellant filed its motion for a new trial and therein challenged the sufficiency of the evidence, that the decision was contrary to law, and alleged error in the matter of evidence. This motion was overruled December 29, 1924, and all preliminary steps for the perfecting of an appeal were taken. An appeal was attempted with the result before noted.

It will be noted that the only trial of this cause which was ever had, was in November, 1924; that since the dismissal of the former appeal the only action by the court was the 1, 2. noting of the dismissal of the cross-complaint of the American State Bank and the rendition of a judgment against bank for costs accruing on said cross-complaint. These proceedings were in no proper sense a "trial." As said in the case of Orr v. State (1928), 200 Ind. 27, 161 N.E. 269, there was nothing in this last action of the court upon which to base a motion for a new trial. The trial of this case had been had in November, 1924; the action of the court in that trial had been duly challenged and the record preserved so that all that remained thereafter by appellant to do was the perfecting of his appeal according to law and presenting upon such appeal a proper record presenting the errors relied upon. This he had a right to do at any time within 180 days from March 31, 1927. The filing of the so-called motion for a new trial and the ruling thereon, under the facts of this case, did not extend said time.

It therefore follows that as the record herein was not filed until October 14, 1927, it was filed too late and we have no jurisdiction thereof. The appeal is dismissed.

Dausman, J. absent.