34 Ind. 401 | Ind. | 1870
Lead Opinion
This was an action by the appellee against:
There is no assignment of error upon any ruling of the court upon the pleadings in the cause, nor upon the ruling of the court in overruling the motion for a new: trial. The errors assigned are all such as were proper to be considered on a motion for a new trial, and as no error is assigned on the ruling upon that motion, the record presents no question for our consideration. This was decided several times by the late court, and the decisions have been followed several times by the court as at present constituted.
The judgment below is affirmed, with costs and five per cent damages.
Rehearing
ON PETITION FOR A REHEARING.
The counsel for the appellants have filed an earnest petition for a rehearing in this cause, and insist that the assignments of error are sufficient to raise the questions involved in overruling the motion for a new trial, although the overruling of that motion is not assigned for error.
The counsel say in their petition that they “ do not think that the late court ever held, that, notwithstanding the errors assigned in this court were contained in the motion for a new trial, yet* that there must be a special assignment of error on the overruling of said motion.”
We quote here an opinion of the “late Court” on this subject, in the case of Herrick v. Bunting, 29 Ind. 467.
“ Elliott, J.—The errors assigned in the case relate exclusively to matters properly presented as causes for a new trial. A motion for a new trial was made and overruled, but that ruling is not assigned for error. The questions discussed by the appellant’s counsel are therefore not properly before us, and hence we cannot pass upon them.”
To the same effect are two other cases in the same volume, decided by the late court, viz.: Whitinger v. Nelson, 441;
The petition for a rehearing is overruled.