Hall v. Nees

Caton, C. J. After the verdict in this cause was rendered, the defendant entered two distinct motions—one in arrest of judgment, and the other for a new trial; which were continued. At the next term, as the record states, the counsel for both parties called up the motion in arrest and argued it; upon which the court took time to consider until the next succeeding term, when the motion in arrest was overruled, and final judgment was rendered on the verdict. It is laid down as a general rule, in works on practice, that a motion in arrest of judgment is a waiver of a motion for a new trial. The motion for a new trial should be made and determined, where it is relied upon, before the motion in arrest is made. But i we were not disposed to adhere to this technical rule, and to allow both motions to be pending at the same time, there was clearly a waiver of the motion for a new trial in this case. After the defendant filed his motion for a new trial, he allowed it quietly to sleep among the files of the court, during several terms, without ever presenting it to the consideration of the court; while in the meantime, he called up and argued his motion in arrest, and pressed it to a decision, and allowed final judgment to be entered up. If he intended to rely upon his motion for a new trial, he should have called it up and asked a decision upon it, before the entry of final judgment at least. After the court had decided the motion which had been presented and argued, it was not its duty to hunt over the files in the cause to see if some other motion had not been slipped in, which should be decided before final judgment should be rendered. If the defendant really intended to rely upon the motion for a new trial, it has much the appearance of a trick, in allowing it to be passed over in silence, until final-judgment was rendered, and now for the first time press it upon the attention of an appellate court, not upon its merits, but simply complaining that the Circuit Court did not decide it one way or the other. We do not feel inclined to encourage this kind of silent practice. The objections urged to the declaration, on the motion in arrest, would apply to all the most approved precedents to be found in works on pleadings. That motion was properly overruled, and the judgment must be affirmed. Judgment affirmed.