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148 Ind. 116

Habbe v. Viele

Indiana Supreme Court

Decided January 13, 1897

Indiana Supreme Court · decided 1897-01-13

<p>Appeal and Error.— New Trial. — Record.—Presumption.—Where all that is shown by the record as to the filing of a motion for a new trial is that it was taken np and presented for the consideration of the court, the parties being present, it will be presumed on appeal that the motion was duly and properly filed, pp. 117, 118.</p> <p>Same. — Weight of Evidence. — Sufficiency of Evidence. — The weight of the evidence is for the trial court, but its sufficiency to sustain the findings of the trial court may be considered on appeal, p. 121.</p> <p>Reformation of Lease. — Mistake.—Sufficiency of Evidence. — In an action to reform a lease the evidence showed that the tenant of a certain storeroom, desiring to quit business procured defendant to take up the lease, to which plaintiff consented. Plaintiff drew up a contract by which the premises were leased to defendant for the unexpired term of the lease at a rental of §2,400.00 per year, it being agreed at the time that at the expiration of the lease defendant was to have the storeroom for an additional term at a fair and reasonable rental. The evidence further showed thaEa competitor of defendant desired the room and offered plaintiff more rent and a bonus; that plaintiff’s husband, acting as her agent, proposed to defendant to extend the lease for a term of five years, at §8,000.00 per year, and a bonus of §500.00; that after defendant had taken time to consider the proposition, and the matter had been further discussed, the plaintiff’s said husband drew up the lease which was for a term of seven years, at a rental of §2,000.00 for the first two years, and §8,000.00 for the last five and a bonus of §500.00; that a typewritten copy of the lease was made, and the plaintiff acknowledged them in duplicate, the original being recorded, and the copy delivered to defendant, at which time the defendant paid the §500.00 bonus; that when the first month’s rent became due, defendant, for the purpose of paying the rent, drew his check for §166.66, and plaintiff drew a receipt for §200.00, claiming that there had been a mistake in drawing the lease. Held, that the evidence was insufficient to show that there had been a mutual mistake in the execution of the lease, pp. II8-I84..</p> <p>Appeal and Error. —Vacation Entry by Clerk will be Disregarded on Appeal. — A statement in a transcript that a motion for a new trial was filed with the clerk in vacation is no part of the record, and will be disregarded on appeal, p. 186.</p>

Relies on Secor v. Souder

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1897-01-13

How this case has been cited

Cited by 20 later decisions — most recently May 1994

3 federal appellate · 17 state decisions

7018971900191019201930194019501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*126On Petition fob Eeheabing.

Howard, J.

¶2The learned and accomplished counsel for appellee seems to have misapprehended, in some degree, the force of our decision as to the filing of the motion for a, new trial. The record proper fails to show when this motion was filed. It should, of course, as required by statute, have been filed on the first day of the December term. The showing made in the record, however, as said in the original opinion, is, simply, that “the motion for a new trial was taken up and presented for the consideration of the court on the thirteenth judicial day of the December term, the parties being present.” From the circumstances that the court then considered and ruled upon it, we must presume that the motion was regularly before that tribunal, that is, that the motion had been duly filed, as required by law. Nothing further was decided as to this matter in the original opinion.

¶3As to the statement found in the transcript, that the motion was filed with the clerk in vacation, and previous to the first day of the term, even if that statement should be regarded, it would not follow that the motion was not afterwards, and at the proper time, duly filed in court. But it is, rather, to be said, that the clerk’s so-called “vacation entry” to show such filing, is no part of the record, and that it was, therefore, not regarded or alluded to in the original opinion. There can be no such thing as a court order-made by a vacation entry of the clerk. Orders are made by the court itself, or, in certain cases, by the judge in vacation. This “vacation entry” is to be wholly disregarded. The record, therefore, failing to show anything in relation to the filing of the motion for a new trial, and the court having taken up and passed upon the motion at a time after the day when it should have *127been filed, we must, as before said, “presume in favor of the regularity of such action, and, consequently, that the court found the motion to have been filed at the proper time.” So it was held in Secor v. Souder, 95 Ind. 95, cited by appellee that, “nothing to the .contrary being shown, the presumption is the court decided rightly.” In the cases cited and relied upon by counsel, the filing of, or the offer to file, the motion for a new trial was shown by the record to have been out of due time. Here, there being no showing as to this matter, the presumption in favor of the court’s action must control. ' \

¶4Petition overruled.

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