Payne v. State

243 Ind. 400 (1962)

186 N.E.2d 9

PAYNE v. STATE OF INDIANA.

No. 30,306.

Supreme Court of Indiana.

Filed November 12, 1962.

*401 Chester Wilson, of Indianapolis, for appellant.

Edwin K. Steers, Attorney General, and Donald L. Adams, Deputy Attorney General, for appellee.

ARTERBURN, C.J.

The appellee, the State of Indiana, has filed a motion to dismiss this appeal on the ground that the appellant has not made a proper Assignment of Errors. Specifically, the appellant has not assigned the overruling of a motion for a new trial as error, but has instead set out the specific items listed in the motion for a new trial as errors in the Assignment of Errors. Rule 2-6, as adopted June 28, 1960, provides that

"... an assignment of error on appeal to the effect that the trial court erred in overruling said motion [for a new trial] shall be the only means of raising said asserted errors on appeal."

Items of alleged error contained in a motion for a new trial present no question on appeal if assigned separately as errors in the Assignment of Errors. Such alleged errors are correctly presented only by the overruling of a motion for a new trial. Bays v. State (1959), 240 Ind. 37, 159 N.E.2d 393; Summers v. Summers (1961), 134 Ind. App. ___, 178 N.E.2d 69.

The record here shows that a motion for a new trial was filed and overruled. The motion contained the specifications listed in the Assignment of Errors. Rule 2-6, with reference to assignment of errors, provides: "Amendments may be permitted upon such terms as the court shall direct." The appellant, however, when the motion to dismiss was filed, made no timely request to amend or correct the Assignment of Errors by specifying therein as error the overruling *402 of the motion for a new trial. The defect in the Assignment of Errors does not go to matters jurisdictional.

We must, however, by reason of appellant's failure to make a prompt effort to correct such defect after attention was called to the same, grant the motion to dismiss.

The motion to dismiss is sustained and the appeal is dismissed.

Bobbitt, Landis and Achor, JJ., concur.

Jackson, J., concurs in result.

NOTE. Reported in 186 N.E.2d 9.