City of Huntington v. Mitten

96 N.E. 467, 176 Ind. 485, 1911 Ind. LEXIS 152

• Court: Indiana Supreme Court
• Decided: November 21, 1911
• Docket: No. 21,959
• Status: Published

Opinion

Morris, J.

Appellee sued appellant for breach of a building contract. Prom a judgment for appellee this appeal is prosecuted. There was a special finding of facts and conclusions of law thereon.

1. A demurrer to the complaint, for want of sufficient facts, was overruled by the lower court, and that action is here assigned as error. Appellant has also' assigned as error the insufficiency of the facts alleged in the complaint.

Appellant, under rule twenty-two of this court, has waived its right to a consideration of the complaint by its failure to state in its brief any proposition or point challenging the sufficiency of the complaint.

2. Appellant earnestly contends that the lower court erred in its conclusions of law on the facts found, and has challenged their correctness by a proper assignment here; but appellee contends that this court cannot consider this alleged error, for the reason that appellant did not, in the circuit court, except to any conclusion of law stated. The record does not show that appellant reserved any exception to any-eonelusion of law. This court does not consider alleged errors in such cases, unless the aggrieved party has reserved an exception when the finding and conclusions were filed. Ewbank’s Manual §24.

3. The lower court sustained appellee’s demurrer to the second paragraph of appellant’s answer, and this ruling is assigned as error. Appellant has waived its right to a consideration of this question by its failure to present in its brief any reason or authority in support of its assignment of error. Ewbank’s Manual §21.

4. Appellant finally has assigned as error the action of the court in overruling its motion for a new trial. The question is not presented in appellant’s brief, and consequently cannot be considered.

5. Appellee filed a motion to dismiss the appeal, but, in view of the conclusion reached by the court, it is not necessary to consider the motion.

There is no reversible error in the record. Judgment affirmed.