Shrewsbury v. Smith

12 Ind. 317

• Court: Indiana Supreme Court
• Decided: May 31, 1859
• Status: Published

Opinion

Per Curiam.

The record contains a bill of exceptions, which, after setting forth the evidence given on the trial, contains this averment: “And upon this evidence the Court found for the defendants, and the plaintiffs moved in arrest of judgment and for a new trial, which the Court overrules, to which rulings the plaintiffs except.”

The only error assigned, relates to the finding of the Court upon the evidence. The appellees, however, insist that that assigned error is not available in this Court, because the motion in arrest precedes that for a new trial.

The position thus assumed is well taken. We have often decided that the motion in arrest of judgment, preceding the motion for a new trial, is an affirmance of the verdict, and precludes that for the new trial. 4 Ind. It. 243, 652. —6 id. 453, 466.—7 id. 406, 706. It follows that the effect of the motion in arrest, in this instance, is to affirm the finding of the Court.

The judgment is affirmed with costs.