Robinson v. Wire

1 Ind. L. Rep. 639

• Court: Indiana Supreme Court
• Decided: June 18, 1881
• Status: Published

Opinion

Opinion of the court by

Mr. Justice Elliott.

Appellant was the plaintiff below. In that court motions were made by the appellant for a change of venue and for a continuance. Both of these motions were overruled. After these motions had been overruled the cause was called for trial, and dismissed for want of prosecution, and judgment rendered against the appellant for costs. Appellant moved for a new trial assigning in support of his motion two causes: 1st. The overruling of his motion for a change of venue. 2d. Overruling his motion for a continuance.

The record does not present any question for our consideration. The only causes assigned for a new trial are based upon rulings made prior to the order of dismissal, and were disposed of by that order. As the appellant does not, by his motion, attack the correctness of the ruling dismissing the cause for want of prosecution, we must regard bim as, in effect, acquiescing in such dismissal. There is no attack at all made upon the order of dismissal and we cannot go back of it to consider the questions upon the rulings refusing a change of venue, and denying a continuance. If the appellant refused to prosecute his action, the court did right in dismissing it, and it is immaterial what errors were committed at an earlier stage of the proceedings. We must presume that the court did do right until the appellant, by a proper motion and upon sufficient grounds, satisfies us that the order of dismissal was erroneous.

J. B. Kenner, for appellant.

Judgment affirmed.