Filed March 6, 1947.
NEW TRIAL — Effect of Granting — Judgment Superseded. — The granting of a new trial puts a case back where it was before trial and supersedes any judgment that may have been rendered therein, and consequently there is no final judgment from which an appeal will lie.
From the Lake Superior Court; Fred A. Egan, Judge.
Action between John W. Carlson, and Maurice Roth and Milton Hicks, wherein judgment was entered but the court subsequently sustained a motion for new trial. From the judgment granting the new trial, John W. Carlson appealed and appellees moved to dismiss the appeal.
Appeal Dismissed. By the court in banc.
Davis Greenberg, of Gary, for appellant.
Hulbert Marlatt, of Gary, for appellees.
The appellant recovered judgment below and the appellees' subsequent motion for a new trial was granted. The case is awaiting a second trial below while the appellant seeks a review of the court's action in granting a new trial.
The granting of a new trial puts a case back where it was before trial and supersedes any judgment that may have been rendered therein. The situation is the same as though no trial had ever been had. Compton v. Benham (1909), 44 Ind. App. 51, 61, 85 N.E. 365; Colchen v. Ninde (1889), 120 Ind. 88, 22 N.E. 94; Jackson Hill, etc., Co. v. Merchants Heat, etc., Co. (1923), 193 Ind. 422, 140 N.E. 532. Consequently there is no final judgment in this case from which an appeal will lie. Enmeier v. Blaize (1932), 203 Ind. 303, 306, 179 N.E. 783; Gray v. Gray (1931), 202 Ind. 485, 492, 176 N.E. 105.
If the court erred in sustaining the appellees' motion for a new trial such error is not available to the appellant until the case is re-tried and a final judgment rendered against him.
NOTE. — Reported in 71 N.E.2d 579.