Indiana, Bloomington & Western Railway Co. v. McBroom

98 Ind. 167, 1884 Ind. LEXIS 526

Opinion

Elliott, C. J.

This action was commenced in the Fountain Circuit Court and carried by change of venue to the Warren Circuit Court. The introductory clause of the assignment of errors reads thus: “The appellant says that there is manifest error in the judgment and proceedings of this cause in the circuit court of Fountain county, Indiana, in this, to wit.” The appellee stoutly contends that this statement restricts the assignment to errors committed by the court named, and that it can not be extended to rulings made by the Warren Circuit Court. Cases closely analogous are cited, and we feel bound to hold that the contention of the appellee must prevail, although, if the question were an open •one, we might be reluctant to adopt a rule so rigorous as that laid down by some of the adjudged cases. Shaw v. Spencer, 33 Ind. 143; Hollingsworth v. State, ex rel., 8 Ind. 257; Riley v. Murray, 8 Ind. 354; State, ex rel., v. Delano, 34 Ind. 52; State, ex rel., v. Terre Haute, etc., R. R. Co., 64 Ind. 297; Buskirk Prac. 110; Powell App. Proc. 277.

The principle upon which these cases proceed is that the assignment of errors is in the nature of a complaint, and that this court is bound to give the same effect to the statements in the assignment of errors as the trial court is bound to give to the statements of a complaint.

Filed June 17, 1884. Petition for a rehearing overruled Nov. 12, 1884.

The only ruling made by the Fountain Circuit Court was upon the demurrer to the complaint, and that ruling is conceded to have been correct.

Judgment affirmed.'