Altheide v. O'Callaghan

Indiana Court of Appeals

Altheide v. O'Callaghan

212 N.E.2d 794, 140 Ind. App. 240, 1966 Ind. App. LEXIS 422

CourtIndiana Court of Appeals

DecidedJanuary 10, 1966

DocketNo. 20,459

StatusPublished

Cited by1 cases

This text of 212 N.E.2d 794 (Altheide v. O'Callaghan) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Altheide v. O'Callaghan, 212 N.E.2d 794, 140 Ind. App. 240, 1966 Ind. App. LEXIS 422 (Ind. Ct. App. 1966).

Pincite

Opinions

Per Curiam.

— This is an appeal from the Marshall Circuit Court. The appellees filed a motion for new trial on the grounds:

“1. That the decision for the Court is .contrary to law.”

The court sustained the motion for new trial and the appellant filed assignment of errors which reads as follows:

“1. The Court erred in granting the motion of the appellees Esther L. O’Callaghan and Grace Ladd O’Callaghan for a new trial.

2. The Court erred in failing to state in writing his specific reasons for sustaining the motion for new trial.

3. Under the facts, circumstances and situation in this cause, there was no legal reason why the motion for a new trial should be granted nor can the granting of a motion for new trial be legally sustained by any specific reasons in writing, if same were given by the Trial Court.”

The appellant filed the transcript which did not contain a bill of exceptions setting out the evidence. There is no reference to the evidence in the appellant’s brief.

Appellees filed a motion to dismiss the appeal or affirm the judgment setting up that the appellants had failed to comply with the Supreme Court rule 2-5 with respect to the transcript and rule 2-17D with respect to the brief. Appellees supported their motion by brief. Appellants filed a brief in opposition to the motion of appellees. No application has been made to this court to correct the transcript by certiorari or to amend the brief. In making this comment we are not passing upon the question of whether or not such application would be timely.

Propositions 2 and 3 of the appellant’s assignment of error present no question for our consideration. Even with an affirmative ruling on these propositions we would not have before us a transcript or brief which would properly present [242]*242a question for our consideration under the motion for new trial and the assignment of errors.

Our Supreme Court has held many times that where the question to be passed under the motion for new trial depends upon the evidence, and the evidence is not in the record there is nothing before the court and the judgment should be affirmed. Snider v. State of Indiana (1954), 233 Ind. 503, 121 N. E. 2d 731; Johnson v. State (1954), 233 Ind. 376, 119 N. E. 2d 717.

There being nothing for our consideration the judgment is affirmed.

Mote, J., not participating.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

— This is an appeal from the Marshall Circuit Court. The appellees filed a motion for new trial on the grounds:

“1. That the decision for the Court is .contrary to law.”

The court sustained the motion for new trial and the appellant filed assignment of errors which reads as follows:

“1. The Court erred in granting the motion of the appellees Esther L. O’Callaghan and Grace Ladd O’Callaghan for a new trial.

2. The Court erred in failing to state in writing his specific reasons for sustaining the motion for new trial.

3. Under the facts, circumstances and situation in this cause, there was no legal reason why the motion for a new trial should be granted nor can the granting of a motion for new trial be legally sustained by any specific reasons in writing, if same were given by the Trial Court.”

The appellant filed the transcript which did not contain a bill of exceptions setting out the evidence. There is no reference to the evidence in the appellant’s brief.

Appellees filed a motion to dismiss the appeal or affirm the judgment setting up that the appellants had failed to comply with the Supreme Court rule 2-5 with respect to the transcript and rule 2-17D with respect to the brief. Appellees supported their motion by brief. Appellants filed a brief in opposition to the motion of appellees. No application has been made to this court to correct the transcript by certiorari or to amend the brief. In making this comment we are not passing upon the question of whether or not such application would be timely.

Propositions 2 and 3 of the appellant’s assignment of error present no question for our consideration. Even with an affirmative ruling on these propositions we would not have before us a transcript or brief which would properly present [242]*242a question for our consideration under the motion for new trial and the assignment of errors.

Our Supreme Court has held many times that where the question to be passed under the motion for new trial depends upon the evidence, and the evidence is not in the record there is nothing before the court and the judgment should be affirmed. Snider v. State of Indiana (1954), 233 Ind. 503, 121 N. E. 2d 731; Johnson v. State (1954), 233 Ind. 376, 119 N. E. 2d 717.

There being nothing for our consideration the judgment is affirmed.

Mote, J., not participating.

Cite This Page — Counsel Stack

Bluebook (online)

212 N.E.2d 794, 140 Ind. App. 240, 1966 Ind. App. LEXIS 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/altheide-v-ocallaghan-indctapp-1966.

Opinions

Related

Cite This Page — Counsel Stack