Mann v. Carson

Court Of Appeals Of Indian Territory

Mann v. Carson

82 S.W. 692, 5 Indian Terr. 115, 1904 Indian Terr. LEXIS 13

CourtCourt Of Appeals Of Indian Territory

DecidedOctober 19, 1904

StatusPublished

This text of 82 S.W. 692 (Mann v. Carson) is published on Counsel Stack Legal Research, covering Court Of Appeals Of Indian Territory primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mann v. Carson, 82 S.W. 692, 5 Indian Terr. 115, 1904 Indian Terr. LEXIS 13 (Conn. 1904).

Pincite

Opinion

Gill, J.

In this case, as disclosed by the record, judg-mt was pronounced by the court on the verdict on May 25, 02. Motion for a new trial was filed July 1, 1902. It does not pear that such motion was presented in accordance with sec->n 5153, Mansf. Dig. (Ind. Ter. St. 1899, § 3358), which reads follows: “The application for a new trial must be made at e term the verdict or decision is rendered, and, éxcépt, for the use mentioned in subdivision seven of section 3356, shall within three days after the verdict or decision was rendered, dess unavoidably prevented.” The record does nbt disclose at July 1, 1902, was one of the days of the same term of court which the judgment was pronounced. The record does disuse the fact that the defendants filed their motion for a new ial about 45 days after the judgment was pronounced. There is no attempt on the part of the defendants to present to the ial court any reasons for the long delay in the presentation of e motion for a new trial, or'that the defendants had been un-'■oidably prevented from filing such motion for a new trial, re motion for a new trial itself, it is true, recites that defendants ive just learned of the existence of the judgment, but this atement is wholly unsupported by affidavit or otherwise, and íes not show that defendants were unavoidably prevented om filing their motion for a new trial. They had filed their íswer in the case, and, having appeared therein, were presumed i know and to have followed each and every step therein, and •e bound by the records of the court, and the court committéd d error in overruling the motion for a new trial, as the same was led out of time, and without leave of court or other reason, and [118]*118such motion for a.Hew trial was subject to be stricken- from the record as having been filed out of time*

But it is urged by the defendants in this case that the court below, in pronouncing its judgment, was without jurisdiction to do so, inasmuch as the judgment was founded upon a complaint which bore neither the signature of the plaintiff nor her attorneys. The record is wholly silent as to whether or not the defendants ever raised this question to the court below, and it must be taken for granted that the defendants seek to raise this question upon their motion for a new trial for the first time in the case in this court. The record does disclose that to this unsigned complaint the defendants voluntarily appeared and answered, and submitted themselves to the jurisdiction of the trial court, and, having so submitted themselves, they are bound by the action of the court and its judgment in such case.

We are therefore of opinion that there is no error in this record-, and that the judgment of the lower court should be, and hereby is, affirmed.

Raymond, C. J., and Clayton, J., concur.

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Gill, J.

In this case, as disclosed by the record, judg-mt was pronounced by the court on the verdict on May 25, 02. Motion for a new trial was filed July 1, 1902. It does not pear that such motion was presented in accordance with sec->n 5153, Mansf. Dig. (Ind. Ter. St. 1899, § 3358), which reads follows: “The application for a new trial must be made at e term the verdict or decision is rendered, and, éxcépt, for the use mentioned in subdivision seven of section 3356, shall within three days after the verdict or decision was rendered, dess unavoidably prevented.” The record does nbt disclose at July 1, 1902, was one of the days of the same term of court which the judgment was pronounced. The record does disuse the fact that the defendants filed their motion for a new ial about 45 days after the judgment was pronounced. There is no attempt on the part of the defendants to present to the ial court any reasons for the long delay in the presentation of e motion for a new trial, or'that the defendants had been un-'■oidably prevented from filing such motion for a new trial, re motion for a new trial itself, it is true, recites that defendants ive just learned of the existence of the judgment, but this atement is wholly unsupported by affidavit or otherwise, and íes not show that defendants were unavoidably prevented om filing their motion for a new trial. They had filed their íswer in the case, and, having appeared therein, were presumed i know and to have followed each and every step therein, and •e bound by the records of the court, and the court committéd d error in overruling the motion for a new trial, as the same was led out of time, and without leave of court or other reason, and [118]*118such motion for a.Hew trial was subject to be stricken- from the record as having been filed out of time*

But it is urged by the defendants in this case that the court below, in pronouncing its judgment, was without jurisdiction to do so, inasmuch as the judgment was founded upon a complaint which bore neither the signature of the plaintiff nor her attorneys. The record is wholly silent as to whether or not the defendants ever raised this question to the court below, and it must be taken for granted that the defendants seek to raise this question upon their motion for a new trial for the first time in the case in this court. The record does disclose that to this unsigned complaint the defendants voluntarily appeared and answered, and submitted themselves to the jurisdiction of the trial court, and, having so submitted themselves, they are bound by the action of the court and its judgment in such case.

We are therefore of opinion that there is no error in this record-, and that the judgment of the lower court should be, and hereby is, affirmed.

Raymond, C. J., and Clayton, J., concur.

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Bluebook (online)

82 S.W. 692, 5 Indian Terr. 115, 1904 Indian Terr. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mann-v-carson-ctappindterr-1904.