Opinion
No. 16,766.
Filed May 8, 1942. Rehearing denied June 17, 1942.
1. COURTS — Inferior Courts — Appeal to Superior Court — Motion for Change of Venue Not Timely Filed — Effect. — Where a party's motion for leave to appeal judgments from a city court to a superior court were granted pursuant to statute authorizing such appeals after the expiration of the usual thirty days from the judgment upon a showing that the party was prevented from appealing within the thirty days by circumstances not under his control, and the appeals were perfected and consolidated, if the party so appealing was entitled to a change of venue from the county thereafter, his motion therefor, filed after submission of the cause on appellee's motion to dismiss the appeals, was not timely, and a change of venue was properly denied. p. 36.
2. AUTOMOBILES — Injuries — Actions — Defense of Infancy — Personal Privilege. — The defense of infancy, if available at all in an action for damages to an automobile as a result of negligence, is a personal privilege, and defendant's failure to set it up at the trial amounts to a waiver of the defense. p. 37.
3. COURTS — Inferior Courts — Appeal to Superior Court — Failure of Party to Consult With Attorney — Insufficient Grounds for Appeal. — The failure of a defendant, against whom a judgment was rendered in city court for damages caused to an automobile, to consult properly and fully with his attorney does not constitute circumstances not under his control which prevented him from appealing the judgment to a circuit or superior court, within the meaning of the statute authorizing such appeals after thirty days from the date of the judgment if it is shown that defendant was prevented from appealing within that time for such reason. p. 37.
4. COURTS — Inferior Courts — Appeal to Superior Court — Service of Process — Record Not Sustaining Allegations of Motion. — Where it was alleged in a motion for leave to appeal a judgment rendered in a city court to a superior court that defendant had not been served with summons and knew nothing about the existence thereof until a certain date, but the record of the city court showed that he was served with summons by reading to him and that he then personally appeared in court, the judge of the superior court to which the appeal was taken properly dismissed the appeal. p. 37.
From the Lake Superior Court; John F. Cody, Judge.
Proceedings by Tony Jusczak against David J. Lewis for leave to appeal judgments previously rendered against him in a city court, wherein the applications were granted, the appeals perfected, and the cases consolidated, and thereafter defendant filed a motion to dismiss, after which plaintiff filed a motion for change of venue. From a judgment dismissing the appeals, plaintiff appealed.
Affirmed. By the court in banc.
Fred Barnett, of Hammond, for appellant.
Lester A. Ottenheimer and Isadore J. Krieger, both of East Chicago, for appellee.
On December 8, 1933, appellee brought an action against appellant in the city court of East Chicago for damages alleged to have been caused to appellee's automobile by the negligence of appellant. Appellant was duly served with notice and appeared by attorney. Judgment was rendered against him for $113.00.
On August 12, 1940, appellee brought an action in the city court of East Chicago against appellant on the previously rendered judgment hereinabove referred to. The record of the city court of East Chicago shows that summons was duly served on appellant by reading and that he appeared both in person and by attorney. On September 2, 1940, the attorney withdrew his appearance for appellant and on October 2, 1940, appellee was given judgment for $113.00 plus $33.90 interest and costs.
On November 13, 1940, and November 14, 1940, appellant filed in the Lake Superior Court his application for leave to appeal the judgments rendered in 1934 and 1940 respectively under § 5-1006, Burns' 1933, § 1936, Baldwin's 1934, which authorizes the circuit and superior courts to allow appeals from city courts and justice courts after the expiration of the usual 30 days, upon a showing that the party seeking to appeal has been prevented from doing so within 30 days by circumstances not under his control.
Both applications were granted and the appeals were perfected and then the two cases were consolidated.
On December 9, 1940, appellee filed a motion to dismiss the appeals. On that day the cause was submitted on the motion to dismiss the appeals, hearing was held in part and continued to December 16, 1940, to give appellee opportunity to present evidence. On December 12, 1940, appellant filed a motion for change of venue from the county. On December 16, 1940, the court overruled appellant's motion for change of venue and appellee then waiving his right to submit evidence, the court sustained his motion to dismiss both appeals.
The errors here relied upon for reversal are: (1) the overruling of appellant's motion for change of venue from the county; and (2) the sustaining of appellee's motion to dismiss the appeals.
It is not necessary for us to consider the question as to whether appellant was entitled to a change of venue from the county before disposition of the motion to dismiss the 1. appeals had he sought the change of venue before submission. It is sufficient to say that if he was entitled to the change, his motion having not been made until after submission was not timely. Lighthill v. Garvin, Receiver (1940), 108 Ind. App. 187, 27 N.E.2d 911. The court did not err in overruling the motion for change of venue.
Appellant in his application for leave to appeal the 1934 judgment did not deny that he was duly served with summons but contended that he was only 19 years of age, that his minority was not suggested to the court and no guardian ad litem was appointed for him.
The defense of infancy if available at all in an action such as was here involved is a personal privilege and appellant's failure to set it up at the trial amounted to a waiver of the 2. defense. Watson v. Wrightsman (1901), 26 Ind. App. 437, 59 N.E. 1064; Cohee v. Baer (1893), 134 Ind. 375, 32 N.E. 920; Daugherty v. Reveal (1913), 54 Ind. App. 71, 102 N.E. 381.
Appellant also alleged in his application for permission to appeal the 1934 judgment that the nature of the action was not explained to him before the judgment was taken and that "he 3. was not consulted by an attorney." He alleged, however, that an attorney did appear for him and did not deny that the attorney was authorized so to do. Failure to properly and fully consult with his attorney would not constitute circumstances not under appellant's control which would have prevented him from appealing within 30 days. The trial court correctly sustained the motion to dismiss the appeal of the 1934 judgment.
As to the 1940 judgment, appellant alleged in his application for permission to appeal that he was never served with summons and knew nothing about the existence of the cause until 4. November 13, 1940. However, the record of the city court of East Chicago showed that he was duly served with summons by reading to him and that he then personally appeared in court. This record was before the trial court and was sufficient to sustain its action in dismissing the appeal as to the 1940 judgment. Cook v. Ernsberger (1940), 107 Ind. App. 605, 22 N.E.2d 885.
Judgment affirmed.
NOTE. — Reported in 41 N.E.2d 627.