Lewis v. Christie , 99 Ind. 377 ( 1884 )

On Petition eor a Rehearing.

Bicknell, C. C. —

The appellee, admits that the court below erred in its instruction No. 12, and he states that he does not ask this court to reconsider its ruling upon said instruction, but he claims a rehearing because, as he alleges, the defences of the appellant are bad, and, therefore, the erroneous instruction was harmless.

The appellee demurred to the appellant’s first defence, and his demurrer was overruled, but as he has not assigned any cross errors, he is not in a position to question the ruling of the court on said demurrer. Buskirk Pr. 119; Jenkins v. Peckinpaugh, 40 Ind. 133.

Filed March 13, 1885.

The appellee considered the second defence sufficient, and took issue on it. If at the proper time he had moved for judgment upon the pleadings, and upon the overruling of that motion had excepted, he could have presented the question arising thereon by a proper assignment of cross error. There is no such question now before us.

The petition ought to be overruled.

Pee Curiam. — The petition for a rehearing is overruled.