Johnson v. Vutrick

Per Curiam.— Vutrick sued Johnson and Johnson, Truax and Truax, Conkhite and Conkhite, Custis and Custis, and others, for a trespass upon his person. Judgment by default, except as to Johnson and Johnson, and assessment of damages—continuance as to the Johnsons. At a subsequent term, the Johnsons appeared, and a trial was had, which resulted in a verdict against them. No exceptions were taken in the progress of the cause. A motion was made for a new trial, which was overruled. It is now urged that the judgment in.this case was erroneously entered upon the verdict against the Johnsons, because of the previous judgment against the co-defendants of the Johnsons. Under the former system of practice, perhaps, such an objection would have been available. See Allen v. Wheatley, 3 Blackf. 332. But in this case, the objection [217] was not raised below. See 2 Hilliard on Torts, p. 459. It was not a ground for a new trial. Ind. Pr., pp, 300, 308, No motion in arrest was made. See 2 Pet. Abr. 385. And it is now too late, under the present practice, to raise the point for the first time in this Court, even if it might have availed had it been made below. But it is doubtful if, under the new system of practice, the objection would have been valid in the Circuit Court. Ind. Pr., p. 354 to 357.—Douglass et al. v. Howland, 11 Ind. R. 554. B. F. Gregory, J. E. McDonald, and R. A. Chandler, for the appellants. D. W. Voorhees and S. C. Willson, for the appellee. The judgment is affirmed with'3 per cent, damages and costs.