New York, Chicago & St. Louis Railroad v. Doane

4 N.E. 419, 105 Ind. 92, 1886 Ind. LEXIS 419

Opinion

Elliott, J. —

The verdict in this case was returned on the 4th day of July, 1884, and on the following day judgment was entered upon it. On the same day that the judgment was entered the appellant filed a motion for a new trial; the cause was then continued until the 23d day of December, 1884, without any action being taken; on that day the appellee unsuccessfully moved to strike out some of the reasons assigned in the appellant’s motion for a new trial, and on the 23d day of January, 1885, the appellant’s motion was overruled and an appeal prayed.

There was no final judgment within the meaning of the statute governing appeals until the ruling denying the motion for a new trial. The appellant had a right to a ruling on that motion; for it was properly and seasonably filed. Until that motion was disposed of, there was no final disposition of the case. It is quite clear that if the appellant had brought up the case before a ruling on the motion, the appeal would have been dismissed, on the ground that it was prematurely taken.

Filed Jan. 22, 1886.

A motion for a new trial is not a collateral one, but is one directly connected with the judgment, and is essential to present for review errors occurring on the trial, and so long as it remains undisposed of there can be no final judgment within the meaning of the statute regulating appeals. A pending motion for a new trial keeps the cause in the trial court, provided, of course, that the motion was seasonably filed.

Motion to dismiss appeal overruled.