Opinion
No. 13,471.
Filed October 3, 1929. Rehearing denied December 20, 1929. Transfer denied January 31, 1933.
1. NEW TRIAL — Motion for — Must be Filed with and Presented to Court — Filing in Clerk's Office Insufficient. — A motion for a new trial must be filed with and presented to the court; filing such motion in the clerk's office is not sufficient. p. 578.
2. NEW TRIAL — Motion for — Where Filed — Filing in Clerk's Office Generally Insufficient — Exception to Rule. — Although a motion for a new trial must be filed in and called to the attention of the court, filing it in the clerk's office was sufficient where the clerk made an entry in the order book of the court showing such filing along with the other entries of the day's proceedings, as the statute (§ 1397 Burns 1926) makes it the duty of the clerk to draw up each day's proceedings at full length in the proper order book, and provides that the judge shall cause the same to be publicly read in open court, and it is presumed that the judge did his duty, and that he heard the entry read showing the filing of such motion. p. 578.
From Lake Superior Court; Charles E. Greenwald, Judge.
Action by Sam Ashton against the Joliet and Eastern Railway Company. From a judgment for plaintiff, the defendant appealed. Reversed. By the court in banc.
Knapp Campbell, Glenn D. Peters and Bomberger, Peters Morthland, for appellant.
Clarence Bretsch and Ellis C. Bush, for appellee.
This was an action for damages in which there was a verdict for $1,000 for appellee on which judgment was rendered against appellant. A motion for a new trial was filed in the clerk's office, in term time. On the day that the motion was filed, appellant, in open court, had this entry made in the order book by the clerk: "Comes now the defendant and shows to the court the filing of a motion for a new trial in the clerk's office on March 30, 1928, which motion is in these words, (insert)." Motion was filed by appellee to strike out the motion for new trial and expunge the record entry for the reason that the same was not filed within the thirty days and in the manner as the law directs. This motion was sustained by the court and the motion for a new trial was stricken out. From this action and from the judgment rendered in the case, this appeal. It is contended by appellant that the striking of the motion for a new trial was reversible error.
It has been repeatedly held that a motion for a new trial must be filed and presented to the court, and that filing the same with the clerk will not be sufficient. Intermediate, 1, 2. etc., Co. v. Cunningham (1915), 59 Ind. App. 326, 108 N.E. 17. While it does not appear that the motion for a new trial was presented directly to the court, it does appear that at the request of appellant in open court the clerk made an entry thereof in the order book of the court. It is provided in § 1397 Burns 1926, that it shall be the duty of the clerk to draw up each day's proceedings at full length in the proper order book, and that the judge shall cause the same to be publicly read in open court, after which they shall be signed by the judge. The presumption of law is that the judge did his duty, and he therefore heard the entry of filing the motion read along with the other proceedings of the day, and then signed them. This was sufficient to call his attention thereto.
The judgment is reversed with instructions to the court to overrule the motion to strike out the motion for a new trial, and for further proceedings.