Opinion
No. 12,861.
Filed May 18, 1927.
1. PLEADING. — Motion in arrest of judgment does not raise any question as to sufficiency of complaint. — Since all objections to the sufficiency of a complaint to state a cause of action are waived by a failure to demur thereto (see § 362 Burns 1926), a motion in arrest of judgment assigning the insufficiency of the complaint was properly overruled. p. 213.
2. APPEAL. — Questions depending on the evidence not presented when evidence not legally in the record. — Where the specifications of a motion for a new trial require the consideration of the evidence and it is not legally in the record, no question is presented for consideration. p. 214.
3. EXCEPTIONS, BILL OF. — Granting time to tender bill of exceptions. — Where time was not given on overruling the motion for a new trial to tender a bill of exceptions containing the evidence, such a bill filed after the term within the time granted on overruling a motion in arrest of judgment is not legally in the record. p. 214.
From Morgan Circuit Court; Joseph W. Williams, Judge.
Action by Margaret Stegman against Henry Ernsting and others. From a judgment for plaintiff, the defendants appeal. Affirmed. By the court in banc.
John P. Leyendecker and Louis P. Adams, for appellants.
Fred W. Steiger and Carey Cox, for appellee.
Appellants have attempted to present two questions: (1) Error in overruling their motion in arrest of judgment; and (2) in overruling their motion for a new trial. Inasmuch as all 1. the reasons assigned in support of the motion in arrest of judgment all relate to the sufficiency of the facts alleged to state a cause of action, the court did not err in overruling such motion. All objections to the complaint for the reasons stated were waived by a failure to demur thereto. Malone, Trustee, v. Kitchen (1922), 79 Ind. App. 119, 137 N.E. 562.
All questions attempted to be presented by the second assignment of error require a consideration of the evidence, which is not in the record. The motion for a new trial 2, 3. was overruled May 8, 1926, but no time was given within which to file a bill of exceptions. On May 15, 1926, after the overruling of the motion in arrest, time was given beyond the term within which to file a bill of exceptions. The bill was not filed within the term, and for that reason the evidence is not in the record. See Tozer, Admr., v. Hobbs' Estate (1923), 79 Ind. App. 258, 137 N.E. 715.
Judgment affirmed.