Daily v. Nuttman

14 Ind. 339

• Court: Indiana Supreme Court
• Decided: June 6, 1860
• Status: Published

Opinion

Worden, J.

Suit by the appellee against the appellants on a note made by them to one Hannah Catterline, and by her indorsed to the plaintiff.

An answer of four paragraphs was filed by the defendants, the last one of which was rejected on the plaintiff’s motion. Replication in denial of the other paragraphs.

Trial; verdict and judgment for the plaintiff, over a motion made by the defendants in arrest of judgment, and for a new trial.

The rejection of the fourth paragraph of the defendants’ answer is assigned for error. That paragraph is nearly the .same in substance as-the third. The facts set up in the fourth, we think, without doubt, could have been given in evidence under the third; hence, no error was committed in rejecting it which should reverse the judgment. Ind. Dig. p. 658, § 253, and authorities there cited.

W. W. Carson, for the appellants. D. Studabaker and W. March, for the appellee.

Error is also assigned upon the admission of testimony and the instructions of the Court. If error was committed in either of these respects, it .was necessary to move for a new trial on that ground. Without such motion, the defendants cannot avail themselves of the error. Kent v. Lawson, 12 Ind. R. 675. The previous motion in arrest of judgment cuts off the motion for a new trial, and affirms the verdict. Ind. Dig. 593. No reason is shown why the judgment should have been arrested.

Per Curiam.

judgment is affirmed with 2 per cent, damages and costs.