Marion & Logansport Railroad v. Lomax

Perkins, J. Lomax sued the Marion and Logansport Railroad Company, in debt. The defendant made default. The plaintiff introduced his evidence, and had judgment for his damages. The defendant then appeared, and moved in arrest of judgment and for a new trial. The Court overruled the motions, and rightly. The default admitted the truth and sufficiency of the complaint. Johnson v. Stebbins, 5 Ind. R. 364. Since the statute of 1855, Laws of 1855, p. 60, the rule will be otherwise. No exception was taken to the admission of evidence. The motion in arrest, preceding, that for a new trial, affirmed the verdict, and cut off the latter motion, even had it been a proper one. Rut it was not a motion adapted to the case. There had been no trial; the default prevented one; and there could be none till the default was set aside. No motion for that purpose was made. I Van Devanter and J. F. McDowell, for the appellants. A. Steele and II. D. Thompson, for the appellee. The only motion the defendant could make, as the case stood, was to set aside the inquest of damages. No such motion was made. See De Gaillon v. L’Aigley, 1 Bos. & Pul. 368. Per Owriam. The judgment is affirmed, with 5 per cent, damages and costs.