Ward v. Patrick

41 Ind. 438

• Court: Indiana Supreme Court
• Decided: November 15, 1872
• Status: Published

Opinion

Osborn, J.

—The appellee filed his complaint to set aside the probate of a will, and to declare the will invalid.

The cause was tried by a jury, which resulted in a verdict for the appellee. Motion for a new trial overruled, exceptions, and final judgment on the verdict.

W. C. Wilson, for appellants. y. M Butler and y. McCabe, for appellee.

The causes set forth in the motion for a new trial were, first, irregularity in the proceedings of the court, and of the prevailing party, by which the defendants were prevented from having a fair trial; second, that the verdict is contrary to law; third, that the verdict is not sustained by sufficient evidence; fourth, error of law occurring at the trial and excepted to by the defendant.

The errors assigned are, first, in instructing the jury, which was excepted to at the time; second, in overruling the appellants’ motion for a new trial; and, third, in misdirecting the jury in each of the instructions asked by the appellee.

The second assignment covers each of the others.

The appellee insists that no question arises on the first and fourth causes for a new trial; that to make those causes available the irregularity and error must be pointed out and specified, in the motion. Barnard v. Graham, 14 Ind. 322; Medler v. Hiatt, 14 Ind. 405; Scoville v. Chapman, 17 Ind. 470, are directly in point in support of the position of the appellee. Indeed, it has been so frequently decided by this court, that a reference to the decisions seems to be unnecessary.

We have read the evidence in the case, and think it sufficient to sustain the verdict of the jury.

The appellants rely chiefly upon the erroneous charges to the jury to reverse the case, but as we have seen, under the motion for a new trial filed, they are not legitimately before, us, and we cannot consider them.

The judgment of the said Fountain Court of Common Pleas is affirmed, with costs.