second assignment error in Indiana

1954While the facts in the case of Ransdel et al. v. Moore et al. (1899), 153 Ind. 393 , 53 N. E. 767 , 53 L.

1954While the facts in the case of Ransdel et al. v. Moore et al. (1899), 153 Ind. 393 , 53 N. E. 767 , 53 L.

1947The Evansville and Crawfordsville Railroad v. Baum (1866), 26 Ind. 70 ; Hardison v. Mann (1898), 20 Ind. App. 404 , 50 N. E. 899 ; Claypool v. Jaqua, Admx. (1893), 135 Ind. 499 , 25 N. E. 285 ; Hauger v. Benua (1899), 153 Ind. 642 , 53 N. E. 942 ; Watson’s Works Practice, § 536, p. 394, and cases therein cited. *73 The second assignment of error is that the court erred in overruling appellant’s motion to strike out parts. of appellee’s third paragraph of answer.

1947The Evansville and Crawfordsville Railroad v. Baum (1866), 26 Ind. 70 ; Hardison v. Mann (1898), 20 Ind. App. 404 , 50 N. E. 899 ; Claypool v. Jaqua, Admx. (1893), 135 Ind. 499 , 25 N. E. 285 ; Hauger v. Benua (1899), 153 Ind. 642 , 53 N. E. 942 ; Watson’s Works Practice, § 536, p. 394, and cases therein cited. *73 The second assignment of error is that the court erred in overruling appellant’s motion to strike out parts. of appellee’s third paragraph of answer.

1947The Evansville and Crawfordsville Railroad v. Baum (1866), 26 Ind. 70 ; Hardison v. Mann (1898), 20 Ind. App. 404 , 50 N. E. 899 ; Claypool v. Jaqua, Admx. (1893), 135 Ind. 499 , 25 N. E. 285 ; Hauger v. Benua (1899), 153 Ind. 642 , 53 N. E. 942 ; Watson’s Works Practice, § 536, p. 394, and cases therein cited. *73 The second assignment of error is that the court erred in overruling appellant’s motion to strike out parts. of appellee’s third paragraph of answer.

1947The Evansville and Crawfordsville Railroad v. Baum (1866), 26 Ind. 70 ; Hardison v. Mann (1898), 20 Ind. App. 404 , 50 N. E. 899 ; Claypool v. Jaqua, Admx. (1893), 135 Ind. 499 , 25 N. E. 285 ; Hauger v. Benua (1899), 153 Ind. 642 , 53 N. E. 942 ; Watson’s Works Practice, § 536, p. 394, and cases therein cited. *73 The second assignment of error is that the court erred in overruling appellant’s motion to strike out parts. of appellee’s third paragraph of answer.

1947The Evansville and Crawfordsville Railroad v. Baum (1866), 26 Ind. 70 ; Hardison v. Mann (1898), 20 Ind. App. 404 , 50 N. E. 899 ; Claypool v. Jaqua, Admx. (1893), 135 Ind. 499 , 25 N. E. 285 ; Hauger v. Benua (1899), 153 Ind. 642 , 53 N. E. 942 ; Watson’s Works Practice, § 536, p. 394, and cases therein cited. *73 The second assignment of error is that the court erred in overruling appellant’s motion to strike out parts. of appellee’s third paragraph of answer.

1947The Evansville and Crawfordsville Railroad v. Baum (1866), 26 Ind. 70 ; Hardison v. Mann (1898), 20 Ind. App. 404 , 50 N. E. 899 ; Claypool v. Jaqua, Admx. (1893), 135 Ind. 499 , 25 N. E. 285 ; Hauger v. Benua (1899), 153 Ind. 642 , 53 N. E. 942 ; Watson’s Works Practice, § 536, p. 394, and cases therein cited. *73 The second assignment of error is that the court erred in overruling appellant’s motion to strike out parts. of appellee’s third paragraph of answer.

1947The Evansville and Crawfordsville Railroad v. Baum (1866), 26 Ind. 70 ; Hardison v. Mann (1898), 20 Ind. App. 404 , 50 N. E. 899 ; Claypool v. Jaqua, Admx. (1893), 135 Ind. 499 , 25 N. E. 285 ; Hauger v. Benua (1899), 153 Ind. 642 , 53 N. E. 942 ; Watson’s Works Practice, § 536, p. 394, and cases therein cited. *73 The second assignment of error is that the court erred in overruling appellant’s motion to strike out parts. of appellee’s third paragraph of answer.

1946Co. v. Boys (1919), 71 Ind. App. 102, 111 , 123 N. E. 482 . *567 The appellants’ second assignment of error to the effect that the trial court erred in overruling the separate and several motion for a new trial based upon the grounds that the verdict of the jury is not sustained by sufficient evidence and is contrary to law requires that we review the evidence most favorable to appellee.

1946Co. v. Boys (1919), 71 Ind. App. 102, 111 , 123 N. E. 482 . *567 The appellants’ second assignment of error to the effect that the trial court erred in overruling the separate and several motion for a new trial based upon the grounds that the verdict of the jury is not sustained by sufficient evidence and is contrary to law requires that we review the evidence most favorable to appellee.

1945“This court erred in overruling appellant’s motion for a modification of the judgment.” While a motion to modify a verdict is unknown to our practice, Carlin v. State (1933), 204 Ind. 644 , 184 N. E. 543 , a motion to modify a judgment is common practice.

1945“This court erred in overruling appellant’s motion for a modification of the judgment.” While a motion to modify a verdict is unknown to our practice, Carlin v. State (1933), 204 Ind. 644 , 184 N. E. 543 , a motion to modify a judgment is common practice.

1927Malone, Trustee, v. Kitchen (1922), 79 Ind. App. 119 , 137 N. E. 562 . *214 All questions attempted to be presented by the second assignment of error require a consideration of the evidence, which is not in the record.

1927Malone, Trustee, v. Kitchen (1922), 79 Ind. App. 119 , 137 N. E. 562 . *214 All questions attempted to be presented by the second assignment of error require a consideration of the evidence, which is not in the record.

1924Yazel v. State (1908), 170 Ind. 535, 539 .

1924Co. v. Lightheiser (1906), 168 Ind. 438, 460 ; Ewbank, Manual of Practice (2d ed.) §18 However, it appears that each count of the affidavit is clearly sufficient to charge a crime under the statute. *333 As to the second assignment of error, namely, the overruling of appellant’s motion for a continuance, it is a well-settled rule of practice in this state that the ruling on such a motion cannot be called in question by an independent assignment of error.

1920Robbins v. Bank, etc. (1917), 186 Ind. 573 , 117 N. E. 562 ; Farmers’ Mutual Tel.

1920Robbins v. Bank, etc. (1917), 186 Ind. 573 , 117 N. E. 562 ; Farmers’ Mutual Tel.

1920Appellant in its praecipe to the clerk directed the clerk to prepare a “transcript of so much of the record as shows the filing of the complaint, answers and replies in said cause on which this case was tried and include therein copies of said complaint, answers and replies and also the special findings of facts and conclusions of law thereon, together with the judgment and decree rendered by said court therein.” The motion to modify the decree and judgment, not being called for by the praecipe, is not properly in the transcript and, on authority of Fish v. Hetherington (1916), 61 Ind. App. 64

1920Appellant in its praecipe to the clerk directed the clerk to prepare a “transcript of so much of the record as shows the filing of the complaint, answers and replies in said cause on which this case was tried and include therein copies of said complaint, answers and replies and also the special findings of facts and conclusions of law thereon, together with the judgment and decree rendered by said court therein.” The motion to modify the decree and judgment, not being called for by the praecipe, is not properly in the transcript and, on authority of Fish v. Hetherington (1916), 61 Ind. App. 64

1920My individual opinion is that no recognition whatever should be given the first and fourth assignments of error, for the reason that the appeal is not from the judgment rendered on default; that the second assignment of error is entitled to recognition only because it presents prima facie a jurisdictional question; that the third assignment of error presents the only legitimate question in this appeal; that the case of Indiana State Board, etc. v. Fetrow (1918), 119 N. E. 1004 , should be overruled; and that so much of the opinion in Kurtz v. Phillips (1916), 63 Ind. App. 79 , 113 N. E. 1016 ,

1920My individual opinion is that no recognition whatever should be given the first and fourth assignments of error, for the reason that the appeal is not from the judgment rendered on default; that the second assignment of error is entitled to recognition only because it presents prima facie a jurisdictional question; that the third assignment of error presents the only legitimate question in this appeal; that the case of Indiana State Board, etc. v. Fetrow (1918), 119 N. E. 1004 , should be overruled; and that so much of the opinion in Kurtz v. Phillips (1916), 63 Ind. App. 79 , 113 N. E. 1016 ,

1920My individual opinion is that no recognition whatever should be given the first and fourth assignments of error, for the reason that the appeal is not from the judgment rendered on default; that the second assignment of error is entitled to recognition only because it presents prima facie a jurisdictional question; that the third assignment of error presents the only legitimate question in this appeal; that the case of Indiana State Board, etc. v. Fetrow (1918), 119 N. E. 1004 , should be overruled; and that so much of the opinion in Kurtz v. Phillips (1916), 63 Ind. App. 79 , 113 N. E. 1016 ,

1916This motion contains ' eight grounds, of which the fifth is “that the court erred in sustaining demurrer to defendant’s special plea in bar.” The ruling on a demurrer, however, can not be urged as ground for a new trial [Herron v. Herron (1883), 91 Ind. 278, 280 ], but is properly presented for review only by an independent assignment of error.

1907Rudisell v. Jennings (1906), 38 Ind. App. 403 ; McCaslin v. State (1906), 38 Ind. App. 184 , and cases cited. 3.

1907Rudisell v. Jennings (1906), 38 Ind. App. 403 ; McCaslin v. State (1906), 38 Ind. App. 184 , and cases cited. 3.

1906Appellant relies upon the case of May v. State Bank (1857), 9 Ind. 233 , to justify the second assignment of error.

1890Post v. Pedrick, 52 Ind. 490 . ’ Under the second assignment of error it is claimed: First.

1878Thompson v. Davis, 29 Ind. 264 .

1878See, also, Sage v. Brown, 34 Ind. 464 ; Crocker v. Hoffman, 48 Ind. 207 . ¥e pass to the second assignment of error, viz., the-, overruling of the motion for a new trial.

1877Tracewell v. Peacock, 55 Ind. 572 ; but, were it not waived, there is-no truth in it.

1872Brookins, 6 Blackf. 91, which was an action on a constable’s bond, where an appointment had been made by the justice of the peace, the language of this court is: “ The second assignment of error is, that the justice had no- authority to make the appointment, and the bond was consequently void.