Parliament v. Taber

121 Ind. App. 559 (1951)

100 N.E.2d 902

PARLIAMENT v. TABER.

No. 18,170.

Court of Appeals of Indiana.

Filed October 5, 1951.

*560 John G. McNutt, Bernard Korbly and Charles M. Clark, all of Indianapolis, for appellant.

J. Evelyn Pitschke, of Indianapolis, for appellee.

MARTIN, C.J.

Appellant was adjudged to be the father of a child born out of wedlock and prosecutes this appeal from the judgment. Appellee has filed her motion to dismiss the appeal upon the ground that the appeal presents no question for our determination.

Section 3-640, Burns' 1946 Replacement, provides that, "If the finding of the court, or the verdict of the jury, be for or against the defendant, the party aggrieved thereby may file a motion for a new hearing within ten (10) days after such finding or verdict...." Throughout the statute the judicial examination of the issues of law and fact is referred to as a "hearing" rather than a "trial." It seems quite clear that what is referred to as a "motion for a new hearing" is the same as a motion for a new trial, and that the permissible grounds thereof and the rules of law applicable thereto are the same as those for other motions for a new trial.

The appeal must be brought under the "Children Born out of Wedlock" statute, § 3-623 et seq., Burns' 1946 Replacement, rather than the general statutes relating to juvenile courts. Kessler v. Williston (1947), 117 Ind. App. 690, 75 N.E.2d 676; State ex rel. Gannon v. Lake Circuit Court (1945), 223 Ind. 375, 61 N.E.2d 168.

*561 An assignment of error that the court erred in overruling appellant's motion for a new trial presents all proper specifications in the motion. Zimmerman v. Gaumer (1899), 152 Ind. 552, 53 N.E. 829. Errors which come within the statutory grounds of a motion for new trial present no question when made the basis of an independent assignment of error. Greenwell v. Cunningham (1948), 118 Ind. App. 251, 76 N.E.2d 684; LaSalle Extension University v. Kronewitter (1949), 119 Ind. App. 341, 86 N.E.2d 707; Hedrick v. Hall (1900), 155 Ind. 371, 58 N.E. 257; B.S. Pearsall Butter Co. v. Gibbon (1922), 78 Ind. App. 308, 135 N.E. 492; Loeser v. Goldberg (1932), 95 Ind. App. 52, 182 N.E. 462; Padol v. Home Bank & Trust Co. (1940), 108 Ind. App. 401, 27 N.E.2d 917.

Here the appellant has assigned as error the overruling of his motion for a new trial. He also has attempted to assign independently a number of other alleged errors, but the only ones assigned as error calling for a reversal of the judgment below are such as come within the statutory grounds of a motion for new trial, and they present no question as independent assignments.

Appellant's motion for a new trial or new hearing was not filed within the time permitted by statute, and therefore claimed error in overruling it is not available as error. Income Guaranty Co. v. Zienlinski (1939), 107 Ind. App. 248, 21 N.E.2d 87.

Where no error has been presented to this court, on a motion to dismiss the judgment may be affirmed. Anderson v. State (1950), 228 Ind. 491, 93 N.E.2d 201.

Judgment affirmed.

NOTE. Reported in 100 N.E.2d 902.