Kanouse v. Ballard, No. 11840.

• Docket Nº: No. 11840.
• Citation: 82 Ind.App. 164, 145 N.E. 441
• Case Date: November 19, 1924
• Court: Court of Appeals of Indiana

82 Ind.App. 164
145 N.E. 441

KANOUSE et al.
v.
BALLARD.

No. 11840.

Appellate Court of Indiana, Division No. 1.

Nov. 19, 1924.

Appeal from Superior Court, Madison County; Willis S. Ellis, Judge.

Action by Charles Emery Ballard against George M. Kanouse and others. Judgment for plaintiff, new trial denied, and defendants appeal. Affirmed.

Philip B. O'Neill, of Anderson, and Le Roy Zapf, of Indianapolis, for appellants.

Bagot, Free & Pence, of Anderson, for appellee.

BATMAN, J.

Appellee filed a complaint in a single paragraph against appellants for the replevin of an automobile. Appellant Kanouse filed a plea in abatement to the action, on which issues were joined by the filing of a general denial. On a trial thereof, the court found against appellant, and rendered judgment against him for costs. Appellee filed a second paragraph of complaint alleging a conversion of the automobile in question, on which issues were joined by the filing of a general denial. On the trial of the cause on its merits before a jury, appellee dismissed the first paragraph of his

[145 N.E. 442]

complaint. A verdict was returned in favor of appellee against appellant Kanouse on which judgment was duly rendered. A motion for a new trial having been filed by said appellant and overruled, this appeal followed, based on an assignment of errors which alleges that “the court erred in overruling” said appellant's plea in abatement, and in overruling his motion for a new trial.

[1][2] The error assigned with reference to “overruling the plea in abatement” presents no question, as any error occurring on the trial of the issues formed on such plea must be presented through a motion for a new trial thereof. Williams v. State (1907) 169 Ind. 384, 82 N. E. 790;Brown v. Doak Co. (Ind. Sup. 1922) 135 N. E. 343. Appellant has alleged in his motion for a new trial that “the court erred in overruling” his plea in abatement, but has failed to base the same on any one of the statutory grounds therefor, and hence no question is presented for our determination with reference to such plea. Over v. Dehne (1906) 38 Ind. App. 427, 75 N. E. 664, 76 N. E. 883;Cooley v. Kelley (1912) 52 Ind. App. 687, 96 N. E. 638, 98 N. E. 653;Johnson v. Citizens' State Bank (1914) 57 Ind. App. 348, 107 N. E. 35;Wilson v. Sentman (1920) 74 Ind. App. 112, 121 N. E. 669, 127 N. E. 864;Quinlan v. George B. Limbert & Co. (1920) 75 Ind. App. 429, 130 N. E. 821.

[3][4] Appellant Kanouse contends that the court erred in giving...