Anderson v. Anderson

• Decision Date: 14 May 1891
• Citation: 128 Ind. 254,27 N.E. 724
• Parties: Anderson et al. v. Anderson et al.
• Court: Indiana Supreme Court

128 Ind. 254

27 N.E. 724

Anderson et al.

v.Anderson et al.

Supreme Court of Indiana.

May 14, 1891.

Appeal from circuit court, Clinton county; A. E. Paige, Judge.

J. V. Kent and J. Claybaugh, for appellants. Doyal & Gard, J. C. Suit, W. R. Moore, and J. G. Adams, for appellees.

McBride, J.

The complaint in this case was in three paragraphs. By the first paragraph it was sought to have a deed for land set aside because of alleged fraud and undue influence exercised by the grantee over the grantor; plaintiffs alleging that they were the owners of the same as heirs at law of the grantor, who was deceased. The second paragraph was to quiet title to the same land, and the third was for partition of said land. The appellants were the plaintiffs below. The appellee David Anderson was the only party who made a defense, the other defendants having filed disclaimers. The appellee answered by a general denial, and also filed a cross-complaint, alleging title in himself to the land, and asking to have his title quieted. The cross-complaint was answered by a general denial. The cause was tried by a jury, and the appellants were successful, the jury returning a general verdict in their favor. The appellee filed a motion for a new trial for cause, which was overruled. He then moved in arrest of judgment, but before the motion in arrest was decided he filed a motion for a new trial as of right, under section 1064, Rev. St. 1881, tendering with it a bond, as required by the statute. This motion the court sustained, and granted a new trial. Appellants then moved the court to set aside and vacate the order granting a new trial as of right, and to restore upon the records the judgment rendered and entered in favor of appellants. The court overruled this motion, with other motions, by which appellants sought to attain the same end, and the question was saved by a proper bill of exceptions. The cause was again tried by a jury, and on this trial the appellee was successful, the jury returning a general verdict, finding for him both on the complaint and cross-complaint. A motion by appellants for a new trial for cause was overruled, and judgment was rendered in favor of appellee. Three propositions are argued by counsel for the appellants: (1) That the court erred in granting a new trial to the appellee after he had moved in arrest of judgment; (2) that the appellee was not entitled to a new trial as of right; (3) the court erred in giving certain instructions to the jury.

It is well settled in this state that a motion for new trial for cause comes too late after a motion in arrest of judgment. By moving in arrest of judgment, a motion for a new trial is waived. I Work, Pr. § 933, and cases there cited. This, however,is only true of a motion for a new trial for cause. The reason for the rule, as stated by Chitty in his General Practice, (volume 4, p. 77.) is that by moving to arrest the judgment the party affirms the verdict. The rule, as applied to motions for a new trial for cause, is also subject to the exception that it only applies to cases where the party has knowledge of the fact on which he grounds his motion for a new trial at the time of moving in arrest of judgment. Mason v. Palmerton, 2 Ind. 117. The reason for the rule does not exist, and it can have no application, where the new trial is asked for as of right, under section 1064, supra. The provisions of that section are mandatory, and the court has no discretion, but must grant a new trial upon compliance with the requirement of the section, at any time within one year after the rendition of the judgment. Stafford v. Cronkhite, 114 Ind. 220, 16 N. E. Rep. 596; Railway Co. v. McBroom, 103 Ind. 313, 2 N. E. Rep. 760. In our opinion, moving in arrest of judgment does not affect the right of a party to thereafter move for a new trial as of right.

Was the appellee entitled to a new trial as of right? In the case of Butler University v. Conard, 94 Ind. 353, in which the plaintiff joined in the same complaint an action to recover possession of land and an action to foreclose a mortgage, it was held that the causes of action being improperly joined, and the party having no right to a new trial to foreclose the mortgage, a new trial as of right ought not to be granted. This case was followed in Miller v. Bank, 99 Ind. 273. It is held,...