Fleming v. Dorst

18 Ind. 493

Opinion

Per Curiam.

In this case, the Court below rejected a paragraph of an answer denying the truth of the affidavit in attachment, and, exception was taken. That this was error, is settled in Foster v. Dryfus, 16 Ind. 158. But there was no motion for a new trial, and the question is, can the error be now taken advantage of on appeal? We think, according to Kent v. Lawson, 12 Ind. 675, a motion for a new trial on the ground of the error was- not necessary. This was not an error affecting the trial of an issue formed, but preventing the forming of an issue to try.

The judgment is reversed, with costs. Cause remanded, &c.