23 Ind. App. 166 | Ind. Ct. App. | 1899
There are questions raised by this appeal not passed upon in Lewis v. Albertson, ante, 147. The first is that the court erred in sustaining the demurrer to the fifth paragraph of answer. This paragraph denies that the city of Bedford was duly incorporated and that therefore the proceedings of the council in question were void. The legality of the incorporation can not be attacked thus collaterally. Mullikin v. City of Bloomington, 72 Ind. 161.
The next error claimed is the sixth, the overruling of the demurrer to the amended second paragraph of reply. The demurrer is not in the record, but we are of the opinion that this paragraph by way of estoppel was sufficient.
As to the action of the' court in overruling the motion for a new trial, which is also assigned as error, it is only necessary to say that before the filing of that motion, appellants filed their motion in arrest of judgment. The motion for a new trial therefore came too late. Cincinnati, etc., R. Co. v. Case, 122 Ind. 310. In the rulings herein referred to, we find no error. As to the other alleged errors, the judgment is affirmed upon the authority’of Lewis v. Albertson, supra. Judgment affirmed.
Picr Curiam. — It having been suggested that Mrs. Kate ET. Willard, one of the appellants, has died since the submission of this cause, it is ordered that the judgment rendered herein be as of the term when the submission was madé.