Southern Pacific Company v. Mitnik

Dowell, P. J. — The record of this cause appears by nunc pro tunc entry of the court below made on July 1, 1944, showing a trial by jury on April 26, 1944,- with return of the verdict on the same day and a further showing that appellants’ motion for a new trial was filed on June 21, 1944. Appellant assigns two errors (a) that the court below erred in overruling appellants’ motion for a directed verdict at the conclusion of all the evidence, (b) that the court erred in overruling the motion for a new trial. The first assignment presents no question since it is independently assigned and not stated as one of the grounds for new trial in the motion therefor. White v. State, ex rel. (1915), 183 Ind. 649, 109 N. E. 905; Fausett v. State (1942), 219 Ind. 500, 39 N. E. (2d) 728; Lavene v. Friedrichs (1917), 186 Ind. 333, 115 N. E. 324, 116 N. E. 421. The question on the motion for a new ferial is not before us since the record shows the motion to have been filed 55 days after the return of the verdict instead of within 30 days thereafter as required by statute. §2-2403, Burns’ 1933; *466 §370, Baldwin’s 1934; Income Guaranty Co. v. Zienlinski (1939), 107 Ind. App. 248, 21 N. E. (2d) 87. Appellee has filed timely motion to dismiss. It must be sustained. Ordered: Appeal be and same is hereby dismissed. Note. — Reported in 58 N. E. (2d) 201.