Holtzman v. Smith

122 N.E. 18, 69 Ind. App. 434, 1919 Ind. App. LEXIS 113

• Court: Indiana Court of Appeals
• Decided: February 21, 1919
• Docket: No. 10,161
• Status: Published

Opinion

McMahan, J.

The appellants, John W. Holtzman and Lewis A. Coleman, filed their petition in the Hamilton Circuit Court for an allowance for attorneys’ fees in the matter of the estate of John W. Jessup, an insolvent, of which Samuel M. Smith was assignee. The assignee filed objections to granting the allowance. John L. Dulin, receiver of the Hamilton Trust Company, having been made a party, by leave of court, filed objections to the petition. The cause was tried by the court. The court found against the appellants, and entered a judgment that they take nothing.

Appellants filed a motion for a new trial for the following reasons: (a) “That the finding and order of the court” (1) is not sustained by sufficient evidence; (2) is not fairly supported by the evidence; (3) is clearly against the weight of the evidence, (b) That the “finding, order and judgment of the court” (4) is not supported by the evidence; (5) is contrary to law; (6) is contrary to the law and the evidence; (7) is not fairly supported by the evidence.

This motion was overruled and exception reserved. The errors assigned and relied on for reversal are: (1) That the court erred in overruling appellants’ motion for an allowance for attorneys’ fees; and (2) that the court erred in overruling the motion for a new trial.

The appellees contend that no question is presented by either assignment of error.

The petition of the appellants for an allowance for attorneys’ fees was inore than a formal motion. The appellees filed objections to it. It was tried by the court as an adversary proceeding, witnesses were sworn and testified, the court entered a final order or judgment against the appellants, and they filed tlieir motion for a new trial, which was overruled, exception taken and time given in which to file a hill of exceptions.

1. 2. The order of the court denying the petition and ordering that the appellants take nothing is, in fact, a judgment. The statute defines a judgment as all final orders, decrees and deter-ruinations in an action. §1356 Burns 1914, §1285 R. S. 1881. The first assignment of error presents no question; the error, if any, must be reached through a motion for a new trial.

The appellees insist that the Motion for a new trial is not sufficient to raise any question.

3. It has been uniformly held that causes for a new trial, in the language of those in appellants’ motion, are unauthorized and insufficient. Inskeep v. Gilbert (1910), 174 Ind. 726, 93 N. E. 8; Hall v. McDonald (1908), 171 Ind. 9, 85 N. E. 707; Bubbs v. State (1897), 20 Ind. App. 181, 50 N. E. 402; Bradford v. Wegg (1914), 56 Ind. App. 39, 102 N. E. 845.

As the record stands, it presents no question.

Judgment affirmed.