Cl. 4. This subdivision applies only in cases of tort. Federal Life Ins. Co. v. Maxam, App., 117 N. E. 801.

Cl. 5. In an action on contract the error of excessive damages must be presented in substantial accord with this section, which makes "error in the assessment of the amount of recovery" a ground for new trial. Brown v. Guyer, 64 App. 356, 115 N. E. 947.

Cl. 5. This subdivision was held properly followed in a proceeding for a new trial on the ground that the amount of recovery is excessive. Federal Life Ins. Co. v. Maxam, App., 117 N. E. 801.

Cl. 6. Where the evidence is insufficient or the judgment contrary to law, the proper remedy is a motion for a new trial, and not a motion to vacate the judgment. Queen Coal & Min. Co. v. Epple, 64 App. 235, 113 N. E. 19.

That the judgment is clearly against the weight of the evidence is not ground for a new trial, and presents nothing for review. Hillel v. Julius H. Buettner Furniture & Carpet Co., 62 App. 481, 113 N. E. 12.

A motion for a new trial on the ground that the finding is not sustained by the evidence, was held to sufficiently present for review the weight of the evidence to support the decision, where the trial was by the court. Hillel v. Julius H. Buettner Furniture & Carpet Co., 62 App. 481, 113 N. E. 12.

This subsection authorizes a motion for new trial only on the ground that the decision is not sustained by sufficient evidence or is contrary to law, and no question is presented on appeal, after denial of such motion, on the ground that the judgment and order rendered were not sustained by sufficient evidence and were contrary to law. Indianapolis Electric Supply Co. v. Trapschuh, 63 App. 120, 114 N. E. 99.

Cl. 8. An error in refusing to allow the proper party to open and close must be presented in a motion for a new trial in order that it may be reviewed on appeal. Williams v. Lowe, 62 App. 357, 113 N. E. 471.

The application for new trial provided for by this section is independent and judgment granting or refusing it is a final judgment. Lowry v. Indianapolis Traction etc. Co., App., 126 N. E. 223.

In view of earlier legislation, this section and §§ 587-589, relating to applications for new trial application must be made in court before which action was tried. Lowry v. Indianapolis Traction etc. Co., - App. 126 N. E. 223.

[Acts 1919, p. 42. In force May 15, 1919.]

587. Motion for new trial-When made.-22. The application for a new trial may be made at any time within thirty (30) days from the time when the verdict or decision is rendered: Provided, That if the term of court at which the verdict or decision is rendered is adjourned before the expiration of thirty (30) days from the time when the verdict or decision is rendered, then the motion for a new trial may be filed in the clerk's office of said court within thirty (30) days from the time of the rendition of such verdict or decision, and not afterwards: Provided, further, That when any such motion for a new trial is filed in the office of the clerk of such court after the term of court at which the verdict or decision is rendered shall have been adjourned, the clerk of the court shall make a minute of the filing of such motion on the entry docket, showing the date of such filing, and

affixing his initials thereto, and he shall likewise make a vacation order book entry showing such filing and the date thereof.

This section amends section 587, Revision of 1914.

Motions for new trials must be filed within the time fixed by statute. Chicago etc. R. Co. v. City of Bloomington, 182 Ind. 236, 105 N. E. 561; Talbot v. Meyer, 183 Ind. 585, 109 N. E. 841; Blose v. Myers, 58 App. 34, 107 N. E. 548; Acme White Lead etc. Co. v. Indiana Wagon Co., 61 App. 644, 112 N. E. 392.

The act of 1913, amending the section of the statute fixing the time for filing motions for new trials is construed, and it is held that parties can not agree that such motions may be filed after the time fixed by statute has expired. Talbot v. Meyer, 183 Ind. 585, 109 N. E. 841; Hedekin Land etc. Co. v. Campbell, 184 Ind. 643, 112 N. E. 97; Blose v. Myers, 58 App. 34, 107 N. E. 548.

The time when a motion for a new trial could be filed under the act of 1909, is considered. Ward v. Tuttle, 54 App. 674, 102 N. E. 405.

When a motion for a new trial is filed during a term of the court, the attention of the court must be called to such filing and the filing shown by the record. Intermediate Life etc. Co. v. Cunningham, 59 App. 326, 108 N. E. 17.

The question of the right of parties to file additional or supplemental motions for new trials is considered, and when such motions may be filed and the matters that may be included therein. Fisher v. Southern R. Co., 55 App. 599, 104

N. E. 521.

An application for a new trial filed more than thirty days after rendition of verdict comes too late. Lake Erie & W. R. Co. v. McConkey, 62 App. 447, 113 N. E. 24.

If a motion for a new trial is not filed within the time prescribed by this section, an assignment of error for the overruling of the motion presents nothing for review. Axton-Eckman Chemical Co. v. Mundell, App. 112 N. E. 546. Under this section, an appeal should be dismissed where application is not made within thirty days from the rendition of verdict. Acme White Lead & Color Works v. Indiana Wagon Co., 61 App. 644, 112 N. E. 392.

Motion for a new trial filed more than thirty days after rendition of verdict can not be considered. Hedekin Land & Imp. Co. v. Campbell, 184 Ind. 643, 112 N. E. 97.

Under this section it was held that a motion for a new trial was properly made after the convening of a new term in open court, where the judgment was rendered and the new term convened before the expiration of the thirty-day period. Allen v. Powell, 65 App. 601, 115 N. E. 96.

In view of this section and § 589, as to motion and cause for new trial the filing of a supplementary motion more than thirty days after decision of the court on the merits was unauthorized, and the court did not err in striking it out. H. W. Johns-Manville v. South Shore Mfg. Co., App., 123 N. E. 648.

See note to section 585.

588. Manner of applying.

This section providing that a new trial must be on motion for written causes filed at the time of making the motion, the cause for new trial must be based on the ground prescribed in § 585. Wilson v. Sentman, App., 121 N. E. 669. Under this section a brief is not fatally defective for failure to show that a request set out therein was signed, especially where no claim is made that the record itself fails to show such signing. Gwinn v. Hobbs, App. 118 N. E. 155.

See note to section 585.

589. Causes discovered after term, limit.

This section applies only when the causes for a new trial were discovered after the term at which the trial was had. Fisher v. Southern R. Co., 55 App. 599, 104 N. E. 521.

An order granting a new trial on an application filed after the term at which the judgment was rendered because of matters discovered after such term, is a final judgment from which an appeal lies. Jones v. Kolman, 50 App. 158, 98 N. E. 74.

An action under this section for a new trial is an independent action, and the complaint must state a cause of action. Meldon v. Cox, 60 App. 403, 110 N. E. 1008.

Under this section, the evidence which must have been discovered since the trial must be such as could not have been discovered prior thereto and of such material character as would probably change the result. Meldon v. Cox, 60 App. 403,

110 N. E. 1008.

In an action for a new trial, the plaintiff should introduce in evidence the record of the former trial, and prove what the evidence was, as well as the newlydiscovered evidence, and show that the newly-discovered evidence was discovered since the trial, and that diligence was exercised, and that it will probably change the result. Meldon v. Cox, 60 App. 403, 110 N. E. 1008.

Where appellee admits that his testimony on the trial was false, appellant's remedy is an application for a new trial within one year, on the ground of newlydiscovered evidence, or under §§ 645, 646, for review of the judgment within three years on the ground of material new matter. Vivian Collieries Co. v. Cahall, 184 Ind. 473, 110 N. E. 672.

The showing of diligence in an application for a new trial under this section must be so broad as to dispel all surmise to the contrary. McKernan v. Estabrook, - App., 115 N. E. 956.

---

Since the right to a new trial after the term is entirely statutory, substantial compliance with the requirements of this section must be alleged and proved. McKernan v. Estabrook, App. 19 115 N. E. 956.

Under this section an application for a new trial must be limited to the second term after discovery of the facts on which the application is based. McKernan v. Estabrook, App., 115 N. E. 956.

In an application for a new trial under this section after the term, the applicant must show that the evidence could not have been discovered before the expiration of the usual time for moving for a new trial. McKernan v. Estabrook, App. -, 115 N. E. 956.

The mere allegation in an application for a new trial after term that the applicant did not know that an opposing witness would give certain testimony is not a sufficient showing of diligence. McKernan v. Estabrook, — App. —, 115 N. E. 956. See note to sections 585, 587.

SEC.

ARTICLE 24.-JUDGMENT.

590. General verdict, judgment on.
592. On pleadings notwithstanding ver-
dict.

594. Against part of plaintiffs or de-
fendants.

599. Judgment in replevin.

600. Proof and assessment on default.

SEC.

606. Entry-What it shall specify.
615. Confession of judgment by attor-
ney, affidavit.

616. Nonresident to file cost bond.
621. Costs, how apportioned.
626. Fee bills, costs.

Judgments rendered on general verdicts must be in conformity with such verdicts. Lake Erie etc. R. Co. v. Reed, 57 App. 65, 103 N. E. 127.

592. On pleadings notwithstanding verdict.

If there is one good paragraph in a complaint, the defendant is not entitled to a judgment on the pleadings notwithstanding a verdict in favor of the plaintiff. Pennsylvania Co. v. Reesor, 60 App. 636, 108 N. E. 983; Vandalia Coal Co. v. Alsopp, 61 App. 649, 109 N. E. 421.

594. Against part of plaintiffs or defendants.

When persons are sued on an alleged joint contract or liability, judgment can not be rendered against part of the defendants only unless a joint liability is proved against them. Williams v. Lowe, 49 App. 606, 97 N. E. 809.

599. Judgment in replevin.

In an action of replevin all damages for the taking or detention of the property must be included in the judgment, and the judgment becomes res judicata as to all damages that might have been included therein. Jackson v. Morgan, 49 App. 376, 94 N. E. 1021.

600. Proof and assessment on default.

See note to section 350.

606. Entry-What it shall specify.

The announcement of the judge in open court in a divorce case of his decision and the judgment thereon is the rendition of the judgment in the case independent of this section and §§ 1450, 1451. Livingston v. Livingston, App., 121

N. E. 119.

615. Confession of judgment by attorney, affidavit.

When a power of attorney is given to confess a judgment, there should be an affidavit that such confession is not made to defraud creditors, but such a judgment is good as between the parties without such an affidavit. Irose v. Balla, 181 Ind. 491, 104 N. E. 851.

616. Nonresident to file cost bond.

In an application to require the plaintiff in an action to file a bond for costs because of his being a nonresident of the state, the plaintiff may show by the affidavits of persons that he is a resident of the state, the case of Smith v. Chandler, 13 Ind. 513, being overruled on this point. Humrichous v. Thomas, 177 Ind. 593, 98 N. E. 419.

Nonresidents may be allowed to prosecute actions as poor persons without filing bonds for the payment of costs. Sissenguth v. Bourne, 58 App. 97, 107 N. E. 743. 621. Costs, how apportioned.

See note to section 577.

626. Fee bills, costs.

Fee bills may be issued against persons who sign cost bonds as sureties. Metsker v. Whitsell, 181 Ind. 126, 103 N. E. 1078.

627. Judgment on publication, opening except divorce.

When an application is made to open a judgment that is rendered by default against a person who was given notice of the pendency of the action by publication, and the defendant be allowed to make defense, the plaintiff in such judgment must be served with notice of such application before the expiration of five years after the date of the rendition of such judgment. Young v. Foster, 58 App. 253, 104 N. E. 769.

Under this section and § 628, a motion to open a judgment must be accompanied by a showing of a meritorious defense. Garrison v. Miller, 62 App. 485, 112 N. E. 22.

Under this section and §§ 628, 629, one who was not served with notice, except by publication, and had no actual knowledge of the judgment, was held entitled to have the judgment opened as against plaintiffs and others who are not bona fide purchasers for value. Knotts v. Tuxbury, App. —, 117 N. E. 282.

This section and § 628 should be liberally construed, since they are remedial in character. Knotts v. Tuxbury, App. —, 117 N. E. 282.

Under this section and § 628, an affidavit by one of several defendants who are served only by publication, that he had authority to and made the same in behalf of himself and each of his co-defendants; that he knows the facts in relation to each defendant, and that during the pendency of the action neither he nor any of said defendants received actual notice in time to appear and defend, was held to warrant the vacation of the judgment where not in any way attacked. Knotts v. Tuxbury, App. 117 N. E. 282.

645. Review of judgment, by whom, exception.

If a judgment is rendered against a person without proper notice or an appearance, the judgment is subject to review. Shafer v. Shafer, 181 Ind. 244, 104 N. E. 507.