Cassell v. Cochran

Royse, C. J. Appellee brought this action against appellants to recover damages for personal injuries sustained by her in a fire which occurred in a dwelling house which was rented by appellee from appellants. Trial by jury. Verdict in favor of appellee for $500.00. Appellants’ first specification in their assignment of errors here is that the trial court erred in overruling their motion .in arrest of judgment. This motion sets out nine grounds in which it is alleged the complaint does not state facts sufficient to constitute a cause of action. Appellants did not demur to the complaint. Therefore, any defect in the complaint is waived and the overruling of the motion in arrest of judgment presents no question to this court. Hedekin Land and Improvement Company v. Campbell (1916), 184 Ind. 643, 112 N. E. 97; Malone, Trustee v. Kitcken (1922), 79 Ind. App. 119, 137 N. E. 562; Wright et al. v. J. R. Watkins Company et al. (1928), 86 Ind. App. 695, 159 N. E. 761. For the same reason we cannot consider the second specification in the assignment of errors, that the complaint does not state facts sufficient to constitute a cause of action. Indianapolis Power & Light Company v. Waltz (1938), 104 Ind. App. 526, 12 N. E. (2d) 404. *117 The third and fourth specifications in the assignment of errors are that the trial court erred in overruling appellants’ motion to instruct the jury to return a verdict in favor of appellants at the conclusion of appellee’s.evidence and at the conclusion of all of the evidence. This is not a proper independent assignment of error. White et al. v. State of Indiana ex rel. Huff et al. (1915), 183 Ind. 649, 655, 109 N. E. 905, Ann. Cas. 1917B, 527; Western & Southern Life Insurance Company v. Davis, Admrx. (1937), 104 Ind. App. 397, 8 N. E. (2d) 393. 4. The fifth specificatidn in appellants’ assignment of errors is that the trial court erred in overruling their motion for a new trial. Appellants filed their motion in arrest of judgment prior to the time they filed their motion for a new trial. Under such circumstances the motion for a new trial presents no question. Kelly et al. v. Bell (1909), 172 Ind. 590, 596, 88 N. E. 58; New Albany Woolen Mills Company v. Senior, Administratrix (1913), 53 Ind. App. 453, 101 N. E. 1025; Phillips v. Gammon et al. (1919), 188 Ind. 497, 124 N. E. 699; Wright v. J. R. Watkins Co., supra. No question having been presented by this appeal, the judgment of the Superior Court of Marion C’ounty is affirmed. Note. — Reported in 50 N. E. (2d) 668.