Keplinger v. Ward

OPINION.SUSPENDING APPEAL Flanagan, C. J. The only assignment of error not waived by appellant is, “The court erred in overruling appellant’s amended motion for. a new trial.” But the amended motion for a new trial was not filed until 56 days after the finding and judgment of the trial court. Having been filed too late it was a nullity. It did not take out the original motion and the court’s ruling on it presents no question for consideration. Berning v. Scheuman (1942), 111 Ind. App. 156, 40 N. E. (2d) 1005. An examination of the transcript discloses that the original motion for a new trial was filed in time but that the trial court has not ruled on it. Both appellant and appellees have briefed the questions which would be presented by the overruling of said motion. Therefore, if the trial court so rules no further briefing here is necessary. But if the trial *520 court sustains the motion this appeal should be dismissed. It is therefore ordered that consideration of this appeal be suspended until disposition is made of the original motion for a new trial in the trial court, and the clerk of that court is ordered to certify here any such proceedings. Note. — Reported in 64 N. E. (2d) 307.