Anheuser-Busch Brewing Ass'n v. George

42 N.E. 245, 14 Ind. App. 1, 1895 Ind. App. LEXIS 313

Opinion

Davis, J.

This was an action brought by the appellee Flora George against Seif George, her husband, and the appellant. She recovered judgment against both of the defendants in the court below. The appellant alone appeals from this judgment. The errors assigned by the appellant are that the complaint does not state facts sufficient to constitute a cause of action, and that the court erred in overruling the motion for a new trial. The motion for a new trial is not in the record. The complaint is, perhaps, sufficient when attacked for the first time in this court. The appellant has not caused marginal notes to be placed on transcript in their appropriate places, indicating the several parts of the pleadings in the cause, the exhibits, if any, the orders of the court, and the bill of exceptions, as required by rule 30.

The appellee Plora George moves the court to dismiss the appeal.

This motion is well taken. Gregory v. Smith, 139 Ind. 48; Ledbetter v. Winchel, 142 Ind. 109; Inman v. Vogel, 141 Ind. 138; Walsh v. Brockway, 13 Ind. App. 70; Hults v. Martin, 141 Ind. 701; Town of Ladoga v. Linn, 9 Ind. App. 15; Burtt v. Little, 12 Ind. App. 567; Lockhart v. Schlottenback, 12 Ind. App. 683.

Under the decision in the case last cited the complaint is sufficient. Under the decision in Town of Ladoga v. Linn, supra, the appeal might be dismissed for failure to comply with rule 30, although this court would probably not reverse a case. for that reason, but ordinarily would give opportunity to correct the omission. Moreover, no question is presented by the second error assigned because of the omission of the motion for a new trial from the transcript. Under the other authorities cited, the appeal should be dismissed for failure to join Seif George as an appellant in the assignment of errors.

Filed November 26, 1895.

The appeal is therefore dismissed.