Cross v. Cross

59 N.E. 1049, 156 Ind. 378, 1901 Ind. LEXIS 54

Opinion

Monks, J.

Appellant brought this action to contest the will of Jacob Cross, deceased. This appeal was taken under §642 Burns 1894, §630 R. S. 1881 and Horner 1897, which provides for reserving questions of law decided by the court during the progress of the trial for the decision of the Supreme. Court. . . . ..

It is insisted by appellant that the court erred in giving certain instructions to the jury. No moti.on for .a new trial was made in [he court below. It is settled that unless an alleged error occurring during the progress of the trial is presented to the trial court as a ground for a new trial, .the same can not. be considered on appeal. The rule applies to questions of law reserved upon the trial under §642 (630), supra, as well as to questions reserved upon the trial under the general rules of practice authorized by the.code. Conner v. Town of Marion, 112 Ind. 517, 520, 521; Rousseau v. Corey, 62 Ind. 250; Starner v. State, 61 Ind. 360; Love v. Carpenter, 30 Ind. 284; Garver v. Daubenspeck, 22 Ind. 238; Ewbank’s Manual, §§44, 96, pp. 65, 66, 134.

Judgment affirmed.