Potter v. McCormack
| Decision Date | 14 March 1891 |
| Docket Number | 14,630 |
| Citation | 26 N.E. 883,127 Ind. 439 |
| Parties | Potter v. McCormack et al |
| Court | Indiana Supreme Court |
From the Tippecanoe Circuit Court.
Judgment affirmed, with costs.
A. Rice and W. S. Potter, for appellant.
J. F McHugh, for appellees.
This was a proceeding commenced before the board of commissioners of Tippecanoe county by the appellant for the establishment of a highway.
The appellant appeared and filed a remonstrance on the ground that the highway would not be of public utility.
On motion of appellees his remonstrance was dismissed by the board of commissioners, who thereupon made an order establishing the highway. Appellant appealed to the circuit court, where, on leave granted, he filed an amended remonstrance, alleging, as in his original remonstrance, as the only ground of objection, that said proposed highway would not be of public utility. The cause was tried by a jury. The jury returned a general verdict for the appellees, the petitioners, and found that the proposed highway would be of public utility, giving a description of it, with its width, etc. Appellant then moved for a new trial. This motion was made on the 24th day of October, 1887, and on the 26th day of October the court overruled the motion and rendered judgment on the verdict for the appellees, establishing the highway, and for costs.
On the 27th day of October, 1887, appellant moved the court in arrest of judgment. This motion was overruled, and appellant moved the court for a venire de novo. This motion was also overruled. The appellant saved the several questions thus presented by proper exceptions.
2. The motion for a venire de novo.
These motions both came too late to be of any avail to appellant. A motion in arrest of judgment must precede the rendition of the judgment, and can not be considered if not made until after judgment has been rendered. Hansher v. Hanshew, 94 Ind. 208; Brownlee v. Hare, 64 Ind. 311.
This is also true of a motion for a venire de novo. Works Practice, section 974; Shaw v. Merchants National Bank, 60 Ind. 83.
Even if these motions had been made in proper time, they present no question upon which we would be justified in reversing the case. Appellant only seeks, by the motion in arrest of judgment, to attack the verdict, which, he insists, is defective. A motion in arrest of judgment will not reach a defective verdict. Works Practice, section 1045; Buskirk Practice, p. 264; Adamson v. Rose, 30 Ind. 380; ...
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