ON PETITION FOR REHEARING Appellants have filed a petition for rehearing in which they urge that we erred in refusing to change the long standing rule that a motion in arrest of judgment should bar a subsequent motion for a new trial. They have again failed to convince a majority of the Court. In the course of their comments they refer to Boor, Administrator v. Lowrey (1885), 103 Ind. 468, which was cited in the original opinion in this case. They assert that the Lowrey case in not persuasive because, notwithstanding there had been a motion in arrest of judgment, this court, in reversing the case, ordered a new trial. The record in the Lowrey case shows that there was a verdict; then followed a motion for a new trial, which was overruled; then followed a motion in arrest of judgment, which was overruled; and then followed final judgment from which the appeal was taken. A motion for a new trial having been filed before the motion in arrest, the ordering of a new trial upon the reversal of the case is not inconsistent with the rule that a motion in arrest cuts off a motion for a new trial.
Appellants assigned as error the action of the trial court in sustaining a demurrer to the plea in abatement of the appellant United Steel Workers of America. In their petition for a 10. rehearing they point out that we failed to rule upon this assigned error and they say that they have a constitutional right to have this question ruled upon. With this we agree. The plea in abatement read as follows:
"Comes now defendant, United Steel Workers of America, an unincorporated organization, by their attorneys, David B. Rothstein, Blaz A. Lucas and John W. Wake, and appear specially for the purpose of questioning the jurisdiction of the court over this defendant and say: *Page 265
1. That at the time the above entitled action was commenced, and continuously ever since, and at the present time, defendant is and was not a resident of the County of Lake, State of Indiana, but, at the time of the beginning of said suit and ever since said time, defendant has been, and still is, a resident of and with its principal office located in the City of Pittsburgh, County of Allegheny, State of Pennsylvania, and that it has a membership of approximately six hundred thousand (600,000) members throughout the United States of America.
2. This defendant further alleges that none of the persons sued by name in this cause as officers and/or members of the United Steel Workers of America, are administrative officials of the United Steel Workers of America or represent the interests of the membership of the same and are not authorized by this defendant to act as such, and that this defendant is not bound or liable by the acts or the conduct of any of the parties named and sued in the plaintiff's complaint.
3. Defendant further says, that none of the officers, agents, or members of this defendant, United Steel Workers of America, have been served with process by the Sheriff of Lake County or his deputies, and that this court has no jurisdiction over this defendant.
Wherefore, defendant prays that this action against them do abate and that they recover their costs herein and for all other proper relief."
In their points and authorities in their original brief appellants said that the plea in abatement brought to the attention of the court that the union was not suable as a legal entity. It will be observed that at no place in the plea in abatement was it alleged that the union was not a suable entity and no facts are alleged upon which it could be claimed that such a conclusion could be based, except the rather parenthetical reference to itself as an "unincorporated organization" in the introduction to the plea. The question of the suability is not presented, *Page 266 but rather by implication the plea in abatement concedes that with proper service there could be jurisdiction over the United Steel Workers of America. The only ground for abatement presented to the Court by the plea was that there had been no proper service. It is only alleged that none of the persons sued by name as officers or members of the union are administrative officials or represent the interests of the membership and that none is authorized to act for or bind the union; and that none of the officers, agents or members of the United Steel Workers of America was served with process. Names of representatives who could have been made parties or who could have been served are not set out, nor is it alleged that there were no administrative officials who could have been made parties or that there were no officers, agents or members of the union who could have been served with process.
"A plea in abatement is a dilatory plea; it is construed with much greater strictness than an ordinary plea in bar; no intendments are taken in its favor. It must contain the 11. utmost fullness and particularity in every respect, also the highest accuracy and precision, leaving nothing to be supplied by intendment on the one hand and no assumed special answer unobviated on the other hand. It is regarded with disfavor as having the effect of excluding the truth." Dodgem Corp. v.D.D. Murphy Shows, Inc. (1932), 96 Ind. App. 325, 331, and cases cited, 183 N.E. 699, 185 N.E. 169.
A plea in abatement must not only point out plaintiff's error, but must show him how it may be corrected, and furnish him with materials for avoiding the same mistake again, or, in 12, 13. technical language, it must give the plaintiff a better *Page 267 writ. Needham v. Wright (1894), 140 Ind. 190, at page 194; 39 N.E. 510; 41 Am. Jur. p. 377, § 127; 49 C.J. 237; Watson's Works Practice, Vol. 1, § 558. Under application of the foregoing rules, it seems clear to us that the Court was justified in sustaining the demurrer to the plea in abatement of the United Steel Workers of America. In asserting that this action on the demurrer was error they rely solely upon the proposition of suability of the union, whereas the plea in abatement did not present that question with the certainty and particularity required of such pleas. It presented only the question of service and failed to point out whether there were officers, agents, representatives or members of the union who could have been made parties or who properly could have been served.
Appellants contend that this court also failed to rule upon the proposition presented by them in their principal brief that on the entire record the trial court should upon its own 14, 15. motion have granted a new trial and that this court further erred in failing to search the record and order a new trial, notwithstanding that the motion for a new trial in the court below was barred by the preceding motion in arrest of judgment. For the trial court to have granted a new trial on its own motion after the motion in arrest had been filed would have been tantamount to abrogation by that court of the long line of cases cited in the principal opinion and the rule established by them. This it could not do. And in asking this court to search the record for error and to order a new trial on its own motion, they overlook the rule that this Court will search the record only to affirm, and not to reverse.
Appellants independently assigned as error that the rendition of any judgment against the union defendants *Page 268 deny them due process of law under the Federal and State 16. constitutions and say we failed to rule upon that assignment. This constitutional question cannot be raised by independent assignment of error. It must have been raised in the trial court and brought to us in connection with some ruling of the trial court involving the question. Alderson v. State (1929), 201 Ind. 359, 361, 362, 168 N.E. 481; Pittsburgh, etc.,R. Co. v. Town of Wolcott (1904), 162 Ind. 399, 401, 69 N.E. 451; Standish v. Bridgewater (1902), 159 Ind. 386, 387, 65 N.E. 189.
The petition for rehearing is denied.
Gilkison and Emmert, J.J., dissent.
NOTE. — Reported in 73 N.E.2d 749.