
    Woodhams et al. v. Jennings et al.
    [No. 20,452.
    Filed April 26, 1905.]
    1. Appeal akd Error. — Overruling Motion to Strike Out. — Error.—• No error can be predicated upon the overruling of a motion to strike out-a part or all of a pleading, p. 556.
    2. Same. — Assignment of Errors. — Waiver.—Where the appellant fails to argue an assignment of error, it is considered as waived, p. 557.
    3. Same. — New Trial. — Evidence Not in Record. — Where the evidence is not in the record questions depending thereon in the motion for a new trial will not be considered, p. 557.
    
      From Warren Circuit Court; Joseph M. Rabb, Judge.
    Petition for the establishment of a turnpike by Alfred G. Woodhams and others against which George II. Jennings and others remonstrate. From a judgment for remonstrants, petitioners appeal.
    
      Affirmed.
    
    
      William B. Durborow, for appellants.
    
      Daniel Fraser and Will Isham, for appellees.
   Monks, J.

This proceeding was commenced by appellants under §§6792-6812 Burns 1901, Acts 1889, p. 433, for the construction of a free turnpike on a public highway located on the line dividing the counties of Warren and Benton. A remonstrance was filed by appellees. Appellants filed a motion to strike out the third and fourth causes of remonstrance, which was overruled by the boards of commissioners of said counties in joint session, and, after hearing the evidence, appellants’ petition was dismissed by said boards. Appellants appealed to the court below, where they renewed their motion to strike out the third and fourth grounds of said remonstrance, which was overruled. A trial of said cause by the court resulted in a finding, and, over a motion for a new trial, a final judgment in favor of appellees, dismissing said proceeding.

Appellants assign for errors (1) that the court erred in overruling their motion to strike out the third and fourth grounds of appellees’ remonstrance;' (2) the court erred in overruling appellants’ motion for a new trial.

1. It is settled that error can not be predicated upon the action of the court in overruling a motion to strike out a part or all of a pleading. Pfau v. State, ex rel. (1897), 148 Ind. 539, 542, 543; Zimmerman v. Gaumer (1899), 152 Ind. 552, 555; Petree v. Brotherton (1893), 133 Ind. 692, 695; Holland v. Holland (1892), 131 Ind. 196, 200, and cases cited; City of Crawfordsville v. Brundage (1877), 57 Ind. 262, 264, and cases cited; Elliott, App. Proc., §639.

2. Appellants have waived the second error assigned by failing to argue the same.

3. Moreover the questions presented by the motion for a new trial depend for their determination upon the evidence, which is not in the record, nor has there been any attempt to bring the same into the record.

Finding no available error, the judgment is affirmed.  