Cassell v. Cochran

• Decision Date: 25 October 1943
• Docket Number: No. 17091.,17091.
• Citation: 114 Ind.App. 115,51 N.E.2d 21
• Parties: CASSELL et al. v. COCHRAN.
• Court: Indiana Appellate Court

114 Ind.App. 115

51 N.E.2d 21

CASSELL et al.

v.COCHRAN.

No. 17091.

Appellate Court of Indiana, in Banc.

October 25, 1943.

Appeal from Superior Court, Marion County; Joseph T. Markey, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 50 N.E.2d 668.Faust, Faust & Faust, of Indianapolis, for appellant.

Rochford & Rochford, of Indianapolis, for appellee.

ROYSE, Chief Judge.

Appellants, in their petition for rehearing, earnestly contend that our opinion in this case contravenes a ruling precedent of the Supreme Court as announced in the case of Prudential Insurance Company of America v. Ritchey, 1918, 188 Ind. 157, 119 N.E. 369, 370, 484.

[1] We believe our opinion is in complete harmony with that case. There the Supreme Court, after holding the trial court did not err in overruling the demurrer of appellant because appellant did not point out in the memorandum filed with the demurrer the real defect in the complaint, said: “By failing to point out this defect in the complaint by its demurrer, appellant waived the right to question the sufficiency of the pleading at any later stage of the proceeding by a motion in arrest of judgment or by an independent assignment of error, but it still had the right to insist that every material fact legally essential to a recovery against it should be established by a preponderance of the evidence. The purpose of the statute cited was to prevent the reversal of cases on account of defects in pleadings not pointed out by memoranda filed with demurrers. It was intended to reinforce other statutes providing that, after verdict, pleadings should be deemed amended as to such defects so as to conform to the evidence; but it was not the purpose to dispense with the proof of facts essential under the law to constitute a cause of action or a cause of defense. The failure of defendant to point out a defect in a complaint does not preclude him from raising objections in any proper way as to the sufficiency of the evidence to sustain every material fact essential to a recovery whether such fact is pleaded or not. If there is a total want of evidence as to an essential fact, he may successfully raise the question by a motion for a new trial on that ground”. (Our italics.)

[2] Our Supreme Court and this court, since 1850, have held that a motion for a new trial filed after a motion in arrest of judgment presents no question. See authorities under n. 22, § 1917, Watson's Revision of Works...