Grider v. Scharf, 17504.

Citation71 N.E.2d 245,117 Ind.App. 704
Decision Date14 February 1947
Docket NumberNo. 17504.,17504.
PartiesGRIDER et al. v. SCHARF.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from Newton Circuit Court; Newall A. Lamb, Judge.

Action between Frank Grider and others and Helen Barr Scharf. From an adverse judgment, Frank Grider and others appeal.

Appeal transferred to Supreme Court pursuant to Burns' Ann.St. § 4-215.Albert H. Gavit, of Gary, George F. Sammons, of Kentland, and Richard S. Kaplan, of Gary, for appellants.

Jay E. Darlington, of Hammond, for appellee.

PER CURIAM.

The substantial questions in this case arise under appellants' motion for a new trial. However, prior to filing their motion for a new trial appellants filed a motion in arrest of judgment. Under the present ruling precedent in this state such action precludes appellants from filing a motion for a new trial, Conant et al. v. First National Bank of Peru, 1917, 186 Ind. 569, 117 N.E. 607;Kelley et al. v. Bell, 1909, 172 Ind. 590, 88 N.E. 58;Cincinnati, Indianapolis, St. Louis & Chicago Railway Co. v. Case, 1889, 122 Ind. 310, 23 N.E. 797, and the trial court's adverse ruling on such a motion could not be error.

However, this court is of the opinion that such prevailing precedent is erroneous and should be overruled. We are in agreement with the following statement from Watson's Revision of Works Practice and Forms, Vol. II, § 1907: ‘It seems to be thoroughly established that a motion in arrest of judgment precludes the filing of a motion for a new trial except for causes discovered afterward. So long as this rule stands, a motion in arrest of judgment should not be made until after a motion for a new trial, if it is desired to make one, but the rule should be changed, as there is no more reason why filing a motion in arrest of judgment should preclude the filing of a motion for a new trial than there is that a motion for a venire de novo or a motion for judgment on the answers to interrogatories should have that effect. The rule was established by the common law and never should have been applied after the adoption of the code.'

This appeal is therefore hereby ordered transferred to the Supreme Court pursuant to Sec. 4-215, Burns' 1933, 1946 Replacement, Subdivision 1.

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  • Grider v. Scharf
    • United States
    • Court of Appeals of Indiana
    • 14 Febrero 1947
    ...71 N.E.2d 245 117 Ind.App. 704 GRIDER et al. v. SCHARF. No. 17504.Appellate Court of Indiana, in Banc.February 14, Appeal from Newton Circuit Court; Newall A. Lamb, Judge. Albert H. Gavit, of Gary, George F. Sammons, of Kentland, and Richard S. Kaplan, of Gary, for appellants. Jay E. Darlin......

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