Indianapolis Traction & Terminal Co. v. Richey

Indiana Court of Appeals

Indianapolis Traction & Terminal Co. v. Richey

81 N.E. 609, 41 Ind. App. 610, 1907 Ind. App. LEXIS 164

Indiana Court of Appeals·Decided June 7, 1907·No. No. 5,862·Published

Opinions

Watson, P. J.-

This action was commenced in the Superior Court of Marion County and was by change of venue transferred to the Morgan Circuit Court. In the last-named court a trial was had by jury, resulting in a verdict and judgment in favor of appellee. The jury returned with the general verdict interrogatories and answers thereto. The appellant moved for judgment upon the answers to interrogatories which was overruled and thereupon appellant filed its motion for a new trial, which was also overruled. The examination of the record in the case discloses the fact that neither of said motions was made in or passed upon by the Superior Court of Marion County. The assignment of errors is, in part, as follows: “The [611] Indianapolis Traction & Terminal Company complains and says there was and is manifest error in the record proceedings and judgment of the Superior Court of Marion County in this cause,” and then specifically assigns each error. The errors as thus assigned as to said motions do not present any question for consideration. Evansville, etc., R. Co. v. Lavender (1893), 7 Ind. App. 655, 662; State, ex rel., v. Terre Haute, etc., R. Co. (1878), 64 Ind. 297, 303; Indiana, etc., R. Co. v. McBroom (1884), 98 Ind. 167; Smith v. Smith (1886), 106 Ind. 43; Chicago, etc., R. Co. v. Walton (1905), 165 Ind. 642; Elliott, App. Proc., §306. The other errors having been waived by the appellant, there is nothing further to be considered.

It therefore follows that this cause should be, and is, affirmed.

Myers, Rabb, Roby and Hadley, JJ., concur; dissenting opinion, Comstock, C. J.

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Watson, P. J.-

This action was commenced in the Superior Court of Marion County and was by change of venue transferred to the Morgan Circuit Court. In the last-named court a trial was had by jury, resulting in a verdict and judgment in favor of appellee. The jury returned with the general verdict interrogatories and answers thereto. The appellant moved for judgment upon the answers to interrogatories which was overruled and thereupon appellant filed its motion for a new trial, which was also overruled. The examination of the record in the case discloses the fact that neither of said motions was made in or passed upon by the Superior Court of Marion County. The assignment of errors is, in part, as follows: “The [611] Indianapolis Traction & Terminal Company complains and says there was and is manifest error in the record proceedings and judgment of the Superior Court of Marion County in this cause,” and then specifically assigns each error. The errors as thus assigned as to said motions do not present any question for consideration. Evansville, etc., R. Co. v. Lavender (1893), 7 Ind. App. 655, 662; State, ex rel., v. Terre Haute, etc., R. Co. (1878), 64 Ind. 297, 303; Indiana, etc., R. Co. v. McBroom (1884), 98 Ind. 167; Smith v. Smith (1886), 106 Ind. 43; Chicago, etc., R. Co. v. Walton (1905), 165 Ind. 642; Elliott, App. Proc., §306. The other errors having been waived by the appellant, there is nothing further to be considered.

It therefore follows that this cause should be, and is, affirmed.

Myers, Rabb, Roby and Hadley, JJ., concur; dissenting opinion, Comstock, C. J.

Indianapolis Traction & Terminal Co. v. Richey, 81 N.E. 609, 41 Ind. App. 610, 1907 Ind. App. LEXIS 164 (Ind. Ct. App. 1907).

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