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Harvey el al. v. Fink.

for a new trial. The second was, in its essential qualities, only a complaint for a review of the proceedings in the original cause. The third was an application for a new trial, seemingly addressed to the discretion of the court for relief against mistake, inadvertence, surprise and excusable neglect on the part of the plaintiffs, under section 396, R. S. 1881. Demurrers were sustained to all the paragraphs of thi«< complaint, and the defendant had final judgment upon demurrer.

The plaintiffs below assign error here:

First. Upon the order granting the defendant a new trial as of right.

Second. Upon the refusal of the circuit court to vacate and set aside that order at a subsequent term.

Third. Upon the overruling of the demurrer to the third paragraph of the defendant's answer.

Fourth. Upon the striking out of their interlocutory motion for a new trial.

Fifth. Upon the refusal of the circuit court to enter judgment in their favor upon the facts as specially found, notwithstanding the general verdict.

Sixth. Upon the refusal of the circuit court to permit their second interlocutory motion for a new trial to be filed and heard.

Seventh. Upon the sustaining of the demurrers to the several paragraphs of the complaint for a review of the judgment and for a new trial.

As has been seen, the record shows that the plaintiffs were present, by their attorneys, when the order was made granting a new trial as of right, and neither interposed an objection nor reserved an exception. In contemplation of law, therefore, the order was made within their knowledge and, impliedly, with their consent. If the record does not speak the truth in reference to what occurred at that time it ought to have been corrected by proper proceedings in the court below. No question was, consequently, reserved on the order granting the new trial, and the circuit court did not err in Harvey el ul. r. Fink.

afterwards refusing to vacate and set aside that order, upon the ground, that it was made without the knowledge or consent of the plaintiffs, or upon any other ground disclosed by the record. The motion to vacate and set aside the order, at all events, came too late, as it belonged to a class of motions which must be entered at the earliest practicable moment to be made available. Hutchinson v. I.emcke, 107 Ind. 121.

No formal argument has been submitted against the sufficiency of the third paragraph of the defendant's answer, and, hence, the third specification of error presents uo question which we are required to decide.

Under the civil code of 1852 a motion for a new trial was permitted only during the term at which the verdict or decision objected to was rendered; but the severity of that rule has been somewhat relaxed by the code of 1881, which provides as follows: "The application for a new trial may be made at any time during the term at which the verdict or decision is rendered, and if the verdict or decision be rendered on the last day of the session of any court, or on the last day of any terra, then, on the first day of the next term of such court, whether general, special, or adjourned." R. S. 1881, section 561.

It is conceded that the verdict complained of in this case was returned on Thursday of the last week of the June term, 1884, and, as has been already stated, the motion for a new trial, which it is alleged the circuit court erroneously refused to entertain, was neither presented nor assumed to be filed until the fourth judicial day of the ensuing October term. This was beyond the time limited by the statute, and as the defendant objected to the filing of the motion at the time it was presented, the circuit court could not have then rightfully done otherwise than to refuse to entertain such a motion. The precise phraseology used in the expression of such a refusal was immaterial. We are, consequently, led to the conclusion that neither the fourth nor sixth specification of error is well assigned.

Harvey et aL i. Fink.

We have no specific argument in support of the motion of the plaintiffs for judgment on the facts as found, not withstanding the general verdict, and, hence, no enumeration of the facts relied upon as sufficient to have sustained that motion. In their motion for a venire de novo the plaintiffs claimed that the facts as found by the answers to the interrogatories were "inconsistent, irreconcilable and incapable of enforcement." But no specifications were at the time furnished in support of that criticism, and none of an opposing character have since been supplied in argument here. There has, consequently, been nothing brought to our attention affirmatively showing that the circuit court erred in overruling the motion for judgment notwithstanding the general verdict.

A complaint for a new trial, after the close of the term at which a cause has been finally disposed of, can only be filed where some sufficient cause or causes have been discovered since the term closed. R. S. 1881, section 563. The proceedings upon such a complaint become a separate and distinct action, and the ultimate result reached through such proceedings constitutes a final judgment from which an appeal may be prosecuted to this court. Hinea v. Driver, 89 Ind. 339. Therefore, this appeal, which is primarily based upon the proceedings and judgment in the partition suit, does not properly bring before us for review the judgment rendered upon the complaint for a new trial. In that respect the case presented is one of a misjoinder of appeals. The same may be said, in general terms, of the paragraph constituting the complaint for a review of the proceedings and judgment in the original cause. But even more serious complications arise out of the joinder of that paragraph with the others demanding a new trial. That paragraph concluded with a prayer for a review of the proceedings set out by it, for errors of law committed during the progress of the cause in refusing to permit the plaintiffs to file and present their second application for a new trial and accompanying affidaAlderman v. Nelson ei at.

vits, and in other respects particularly indicated and complained of. It was, therefore, a complaint for a review for alleged errors of law only.

For error of law apparent upon the record, a party may appeal to this court from the circuit court, or he may file a complaint for a review in the circuit court in which the record remains, but the adoption of one of these remedies waives the other. Traders Ins. Co. v. Carpenter, 85 Ind. 350, and authorities cited. When, therefore, the plaintiffs filed in the circuit court their complaint for a review, and prosecuted the proceeding- thus instituted to final judgment, they precluded themselves from afterwards appealing to this court from the judgment sought to be reviewed. Their only remedy remaining was to appeal to this court from the judgment rendered against them upon their complaint for a review. A different rule prevails where a review is asked upon the ground of new matter discovered since the rendition of the judgment. Hill v. Roach, 72 Ind. 57.

The judgment is affirmed, with costs.

Filed June 16, 1887.

1111 256 |133 473

111 2.">R

No. 12,898. |l38 Ifl

in a.v>

Alderman V. Nelson Et Al. 147 m

Attoritet's Lien.Notice of Intention to Hold.When Must be Entered.Alignment of Judgment.—Under section 5276, R. S. 1881, an attorney does not acquire a lien upon a judgment obtained for a client, even as against subsequent assignees, unless notice of his intention to hold a lien is entered at the time the judgment of the trial court is rendered.

From the Allen Circuit Court.

J. Morris, J. M. Barrett and C. H. Aldrich, for appellant.
R. S. Robertson and J. B. Harper, for appellees.

Elliott, J.—The appellant alleges in his complaint that,

Alderman r. Nelson et al.

in September, 1881, Hiram Cobb recovered a judgment against him before a justice of the peace; that from this judgment the appellant appealed to the circuit court, where judgment again went against him; that this judgment was rendered on the 10th day of June, 1882; that an appeal was taken to the Supreme Court, and the judgment affirmed on the 19th day of April, 1884; that Messrs. Robertson and Harper were the attorneys for Cobb throughout the entire litigation, and on the 14th day of April, 1884, entered a notice of record that they held a lien on the judgment recovered by him; that, in November, 1883, " Cobb became indebted to Charles R. Jennings in a large sum, and to secure the indebtedness as far as possible Jennings took in payment, to the amount of the judgment, the judgment against Alderman, but did not cause any formal transfer of record to be made to him;" that, finding that a transfer was required, he procured one, on the 11th day of June, 1885, and that plaintiff settled the judgment with Jennings. It also appears from the statements of the complaint that Jennings knew, before he received any formal assignment of the judgment, of the claim and notice of Messrs. Robertson and Harper.

We have given a sufficiently full synopsis of the complaint to present the controlling question in the case, which is, was the lien of Messrs. Robertson and Harper, for their services as attorneys, taken in time to make it valid? This is the ruling question, for, if the lien is effectual, then, the assignment to Jennings of the judgment would not impair it Adams v. Lee, 82 Ind. 587; Puett v. Beard, 86 Ind. 172 (44 Am. R. 280). On the other hand, if there was no valid lien, then the assignment to Jennings would be valid, although made after notice filed by Messrs. Robertson and Harper of their intention to hold a lien upon the judgment. It is obvious that if those gentlemen have no lien on the judgment, they can not disturb the settlement made between Cobb's assignee and the appellant, even though no consideration was paid for the assignment, and even though notice

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