Masterson v. Southern Ry. Co.

• Decision Date: 21 April 1908
• Docket Number: No. 21,260.,21,260.
• Citation: 170 Ind. 296,84 N.E. 505
• Parties: MASTERSON v. SOUTHERN RY. CO. et al.
• Court: Indiana Supreme Court

170 Ind. 296

84 N.E. 505

MASTERSON

v.SOUTHERN RY. CO. et al.

No. 21,260.

Supreme Court of Indiana.

April 21, 1908.

Appeal from Circuit Court, Dubois County; E. A. Ely, Judge.

Action by Ruth Masterson, administratrix, against the Southern Railway Company and another. From a judgment for defendants, plaintiff appealed to the Appellate Court, whence the cause was transferred. This cause was transferred from the Appellate Court under the provisions of the second subdivision of section 1337j, Burns' Ann. St. 1901. Affirmed.

See 81 N. E. 730, and 82 N. E. 1021.

Cox & Armstrong, for appellant. A. P. Humphrey, John D. Welman, and M. W. Fields, for appellees.

MONTGOMERY, J.

This cause was tried by jury, and a general verdict returned in favor of appellant on the 3d day of November, 1904. With their general verdict the jury returned answers to special interrogatories submitted; and thereupon appellees each filed motions for judgment on the interrogatories and answers returned thereto by the jury notwithstanding the general verdict, which motions were taken under advisement until the next term of court. On January 26, 1905, the same being the twenty-second judicial day of the January term, 1905, of said court, the following proceedings were had as shown by the record: “Come now the parties hereto by counsel, and the court, being duly advised in the premises, sustains the motion of the defendants heretofore made for judgment on the interrogatories and answers thereto, and now renders judgment thereon for said defendants. It is therefore considered by the court that the plaintiff take nothing by her suit, and that the defendants recover of the plaintiff their costs and charges herein laid out and expended, and the plaintiff now moves the court for judgment on the general verdict herein, which motion is overruled, to which the plaintiff at the time excepts.” On the same day appellant also moved the court to correct and modify the judgment rendered for appellees, and to render judgment in her favor upon the interrogatories and answers thereto, which motion the court overruled, and to this ruling appellant excepted.

The only errors assigned are predicated upon the decisions of the court in overruling appellant's motion for judgment upon the general verdict, and her motion to modify and render judgment in her favor upon the interrogatories and answers thereto. It will be observed that no exception was saved to the action of the court in sustaining appellees' motion for judgment in their favor upon the special interrogatories and answers thereto notwithstanding the general verdict. Appellant must therefore be regarded as having waived any error in this connection, and acquiesced in the ruling. Appellant having neither objected nor excepted to the sustaining of appellees' motions, or to the judgment rendered in pursuance thereof by the trial court, is in no position to complain of any alleged error in such action for the first time in this court. Train v. Gridley, 36 Ind. 241, 247;Teal et al. v. Spangler, 72 Ind. 381, 383;Adams v. Board, etc., 164 Ind. 108, 72 N. E. 1029.

The granting of appellees' motion for judgment upon the special interrogatories and answers ipso facto annulled and vacated the general verdict, and was decisive of all the questions which appellant seeks to present for review by this appeal. The motions made and relied upon by appellant are unauthorized by the Code, and unknown to the practice. The general verdict was no longer in existence to...