Hunsucker v. Dye

123 N.E.2d 925, 125 Ind. App. 247, 1955 Ind. App. LEXIS 221

Opinions

On Motion to Dismiss

Bowen, C. J.

This is an appeal from a judgment in an action under the “Children Born out of Wedlock” statute. The appellee has filed a motion to dismiss the appeal, and in the alternative, that the judgment be affirmed or that appellant’s second assignment of error be stricken from the record.

From the record it appears that the finding and judgment involved in this appeal was entered by the Martin Circuit Court on November 24, 1953. Appellant filed a motion to modify said judgment on November 30, 1953, at the same term of court in which said judgment was originally entered. This motion was overruled on November 30, 1953, and appellant’s motion for a new trial was filed on December 8, 1953, and overruled by the court below on December 10, 1953.

The motion for a new trial having been filed fourteen days after the judgment was rendered in this cause, appellant’s second assignment of error that the court erred in overruling appellant’s motion for a new trial presents no question to this court as to such specification. Hunt v. York (1952), 123 Ind. App. 150, 108 N. E. 2d 903. However, assignment of error Number 1 questions the action of the trial court in overruling appellant’s motion to modify the judgment and decree and presents a proper question for the consideration of this court on appeal as to such specification.

Therefore, appellee’s motion to dismiss is hereby overruled, and this cause is continued for consideration of the error presented in appellant’s first assignment of error.