Carlson v. Roth

Indiana Court of Appeals

Carlson v. Roth

71 N.E.2d 579, 117 Ind. App. 272, 1947 Ind. App. LEXIS 137

CourtIndiana Court of Appeals

DecidedMarch 6, 1947

DocketNo. 17,577.

StatusPublished

Cited by2 cases

This text of 71 N.E.2d 579 (Carlson v. Roth) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carlson v. Roth, 71 N.E.2d 579, 117 Ind. App. 272, 1947 Ind. App. LEXIS 137 (Ind. Ct. App. 1947).

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Opinion

Per Curiam

The appellant recovered judgment below and the appellees’ subsequent motion for a new trial was granted. The case is awaiting a second trial below while the appellant seeks a review of the court’s action in granting a new trial.

The granting of a new trial puts a case back where it was before trial and supersedes any judgment that may have been rendered therein. The situation is the same *273 as though no trial had ever been had. Compton v. Benham (1909), 44 Ind. App. 51, 61, 85 N. E. 365; Colchen v. Ninde (1889), 120 Ind. 88, 22 N. E. 94; Jackson Hill, etc., Co. v. Merchants Heat, etc., Co. (1923), 193 Ind. 422, 140 N. E. 532. Consequently there is no final judgment in this case from which an appeal will lie. Enmeier v. Blaize (1932), 203 Ind. 303, 306, 179 N. E. 783; Gray v. Gray (1931), 202 Ind. 485, 492, 176 N. E. 105.

If the court erred in sustaining the appellees’ motion for a new trial such error is not available to the appellant until the case is re-tried and a final judgment rendered against him.

Appeal dismissed.

Note. — Reported in 71 N. E. (2d) 579.

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Per Curiam

The appellant recovered judgment below and the appellees’ subsequent motion for a new trial was granted. The case is awaiting a second trial below while the appellant seeks a review of the court’s action in granting a new trial.

The granting of a new trial puts a case back where it was before trial and supersedes any judgment that may have been rendered therein. The situation is the same *273 as though no trial had ever been had. Compton v. Benham (1909), 44 Ind. App. 51, 61, 85 N. E. 365; Colchen v. Ninde (1889), 120 Ind. 88, 22 N. E. 94; Jackson Hill, etc., Co. v. Merchants Heat, etc., Co. (1923), 193 Ind. 422, 140 N. E. 532. Consequently there is no final judgment in this case from which an appeal will lie. Enmeier v. Blaize (1932), 203 Ind. 303, 306, 179 N. E. 783; Gray v. Gray (1931), 202 Ind. 485, 492, 176 N. E. 105.

If the court erred in sustaining the appellees’ motion for a new trial such error is not available to the appellant until the case is re-tried and a final judgment rendered against him.

Appeal dismissed.

Note. — Reported in 71 N. E. (2d) 579.

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Bluebook (online)

71 N.E.2d 579, 117 Ind. App. 272, 1947 Ind. App. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlson-v-roth-indctapp-1947.

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