Opinion
No. 17,935.
Filed November 21, 1949. Rehearing denied January 10, 1950.
1. APPEAL — Presentation in Lower Court of Grounds for Review — Motion for New Trial — Sufficiency of Evidence To Sustain Verdict — Negative Verdict — Assignment of Error Presents No Question for Review. — Where a verdict is negative, an assignment of error in a motion for a new trial that a verdict against a party having the burden of proof is not sustained by sufficient evidence presents no question, and the proper way to challenge such a negative verdict is by an assignment that such verdict is contrary to law. p. 691.
2. APPEAL — Presentation in Lower Court of Grounds for Review — Motion for New Trial — Sufficiency of Evidence To Sustain Verdict — Negative Verdict — No Question Presented for Review. — Where appellant assigned as error the overruling of his motion for new trial on ground that verdict was not sustained by sufficient evidence, and his motion was denied because such verdict was negative, such assignment of error presented no question for review. p. 692.
From the Noble Circuit Court, Fred L. Bodenhafer, Judge.
Action by Ullin H. Cart against Claude F. Fleming, Henry H. Cripe, and Christian J. Gunder to recover damages on an attachment bond. From a judgment for defendants, plaintiff appeals.
Affirmed. By the court in banc.
Kissinger Biddle, of Columbia City, for appellant.
Harry E. Vernon, of Goshen, for appellees.
This is an appeal from a judgment for defendants in an action to recover damages on an attachment bond. The error assigned for reversal is the overruling of appellant's motion for a new trial. The sole ground of the motion for a new trial is that the verdict of the jury is not sustained by sufficient evidence.
It has been held in many decisions of this court and the Supreme Court of this State, that where a verdict is negative, an assignment of error in a motion for a new trial that a 1. verdict against a party having the burden of proof is not sustained by sufficient evidence presents no question. Such decisions point out that the proper way to challenge such a negative verdict is by an assignment that such verdict is contrary to law. Skelton v. Bank's Estate (1945), 116 Ind. App. 280, 63 N.E.2d 546; Walder v. Mogul Rubber Corp. (1945), 116 Ind. App. 152, 61 N.E.2d 472; Dept. of Ins. v. Indiana Trav. Assur. Co. (1945), 115 Ind. App. 285, 58 N.E.2d 761; McKee v. Mutual Life Ins. Co. (1943), 222 Ind. 10, 51 N.E.2d 474; Wilson v. Rollings (1937), 214 Ind. 155, 14 N.E.2d 905; Warren Co. v. Exodus (1943), 114 Ind. App. 651, 54 N.E.2d 775; Smith, Execrx. v. Strock, Execr. (1944), 115 Ind. App. 518, 60 N.E.2d 157; Scoopmire v. Taflinger (1944), 114 Ind. App. 419, 52 N.E.2d 728; Myers v. Brane (1944), 115 Ind. App. 144, 57 N.E.2d 594; Cleveland, etc., R. Co. v. Starks (1915), 58 Ind. App. 341, 106 N.E. 646.
We feel that the modern tendency is toward greater liberality in the construction of rules of procedure as reflected in the later opinions of this court and the Supreme Court to the 2. end that causes presented by party litigants may be decided upon their merits. Nevertheless, we feel that we are constrained to follow the ruling precedent of the Supreme Court in the instant case, and we, therefore, hold that no question is presented by appellant's assignment of error in the overruling of his motion for a new trial, which in turn assigns the sole ground that the verdict is not sustained by sufficient evidence.
The judgment is, therefore, affirmed.
Wiltrout, P.J., not participating.
NOTE. — Reported in 88 N.E.2d 577.