School City of Peru v. State ex rel. Youngblood

• Decision Date: 02 June 1937
• Docket Number: 26663.
• Parties: SCHOOL CITY OF PERU et al. v. STATE ex rel. YOUNGBLOOD.
• Court: Indiana Supreme Court

9 N.E.2d 80

212 Ind. 255

SCHOOL CITY OF PERU et al. v. STATE ex rel. YOUNGBLOOD.

No. 26663.

Supreme Court of Indiana

June 2, 1937

Appeal from Cass Circuit Court; John B. Smith Judge.

C Y. Andrews, L. O. Arnold, O. F. Rhodes, all of Peru, McHale Arthur & Myers, of Logansport, and Adelbert W. Matt, of Peru, for appellant.

Hurd J. Hurst, of Peru, Ben Long, of Logansport, and Joseph Tillett and Russel J. Wildman, both of Peru, for appellee.

TREMAIN Judge.

In his petition for a rehearing the appellee insists that no question is presented to this court for the reason that the appellants filed a motion in arrest of judgment prior to the filing the motion for a new trial. Authorities are cited to sustain that proposition. Watson's Revision of Works Practice and Forms, Vol. 2, § 1907, collects many authorities sustaining this proposition, and then says:

'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.'

However the case at bar does not present a situation where this rule is applicable. The record in this case discloses that on the same day three motions were filed in the lower court: (1) A motion to modify the findings of the court, (2) a motion in arrest of judgment, and (3) a motion for a new trial. After argument of counsel and consideration, these motions were overruled simultaneously. Since the motions were filed together and ruled upon at the same time, this court will indulge in the presumption that the trial court followed the rule of practice long in force in this state and considered the motion in arrest of judgment as having been filed after the motion for a new trial. It has been held that where the two motions are filed and pending at the same time, and there being nothing to the contrary, it will be presumed that they were ruled upon in their proper order. Elliott's General Practice, Vol. 2, § 995; Habersham v. Wetter, 59 Ga. 11; Pope v. Latham, 1 Ark. 66; Jewell v. Blandford, 7 Dana (Ky.) 472,...