Opinion
No. 18,833.
Filed March 23, 1956.
1. APPEAL — Plea in Abatement — Motion for New Trial — Assignment of Error — No Question Presented. — Where assignment of error was that trial court erred in sustaining plea in abatement to jurisdiction of trial court to grant an interlocutory order, no question is presented upon appeal under this assignment, for where trial is had on issues formed on plea in abatement and evidence is heard thereon, any question must be raised thereon by a motion for new trial. p. 341.
2. APPEAL — Plea in Abatement — Issues Framed — Assignment of Error. — An assignment of error that trial court erred in denying an interlocutory order presents no question on appeal where the court below sustained a demurrer and judgment was rendered abating the action since there was no judgment granting or denying the temporary injunction prayed for. p. 341.
3. APPEAL — Assignment of Error — Judgment Contrary to Law. — The assignment of error that judgment is contrary to law presents no question on appeal. p. 341.
From the Marion Superior Court, Room Two, Hezzie B. Pike, Judge.
Appellant, Lafayette Hooser individually and on behalf of and as representative of other employees, brought this action against Leon A. Ostien, individually and as member and on behalf of and as representative of all other members of the Brotherhood of Locomotive Firemen and Enginemen for temporary restraining order without notice, a temporary injunction and on final hearing, a permanent injunction. A restraining order without notice was issued and appellees filed a plea in abatement, which upon hearing was sustained and appellants appeal.
Appeal dismissed. By the court in banc.
George Rose, of Indianapolis, for appellant.
Edward B. Henslee, John J. Naughton, Henslee, Monek Murray of Chicago, Illinois, and Ralph Hamill and Robert Hollowell, of Indianapolis, for appellees.
Appellant brought this action against appellees for a temporary restraining order without notice, a temporary injunction on hearing, and on final hearing a permanent injunction. The trial court issued a temporary restraining order without notice. Subsequently each of the appellees filed their plea in abatement on the grounds the court did not have jurisdiction over the subject-matter of the action. Answers were filed by appellant. Trial was had on the issues formed. Evidence was introduced. The trial court entered judgment abating the action.
Appellant has attempted to appeal from that judgment. His assignments of error here are as follows:
1. "The court erred in sustaining the appellee's pleas in abatement to the jurisdiction of the court to grant an interlocutory order."
2. "The court erred in denying the appellant's petition for an interlocutory order in the form of a temporary injunction."
3. "The judgment of the court is contrary to law."
Appellees have filed their motion to dismiss this appeal on the ground the assignments of error present no question here.
It is a well-settled rule that where there has been a trial of the issues raised by a plea in abatement, questions arising thereon must be presented by motion for a new trial. State 1. ex rel. Rose v. Worden, Special Judge (1939), 216 Ind. 83, 86, 23 N.E.2d 264; Eshelman v. State (1930), 201 Ind. 475, 477, 169 N.E. 861; Williams v. State (1907), 169 Ind. 384, 386, 82 N.E. 790. The first assignment presents no question.
As heretofore indicated, the judgment herein abated the action. There was no judgment granting or denying a temporary 2. injunction. Therefore, no question is presented by the second assignment.
The third purported assignment is not proper as an independent assignment of error. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, Vol. 2, p. 156, § 2386, 3. Comment 2, and authorities there cited.
Therefore, the appeal must be dismissed.
NOTE. — Reported in 133 N.E.2d 83.