Davis v. Bryant

100 N.E. 1062, 52 Ind. App. 343, 1913 Ind. App. LEXIS 45

• Court: Indiana Court of Appeals
• Decided: February 11, 1913
• Docket: No. 7,824
• Status: Published

Opinion

Hottel, J.

This is an action in replevin begun before a justice of the peace.

Prom a judgment in appellee’s favor, appellant appeals and assigns as errors:

(1) The court erred in overruling appellant’s motion to dismiss for want of proof of demand; (2) the court erred in sustaining appellee’s objection to questions propounded to Sherman Davis, as to whether or not he was a common carrier; (3) the court erred in overruling appellant’s motion for a new trial.

1. If either of the rulings of the trial court indicated by the first two of the assigned errors could be said to furnish a ground for reversible error in the form in which the questions ruled on were presented to the trial court, the manner of their presentation to this court prevents their consideration.

Errors occurring during trial must be saved by assigning them as cause for a new trial. Rhodius v. Johnson (1900), 24 Ind. App. 401, 56 N. E. 942; Stephens v. Smith (1901), 27 Ind. App. 507, 61 N. E. 745; Martin v. Motsinger (1892), 130 Ind. 555, 30 N. E. 523; Herrick v. Flinn (1896), 146 Ind. 258, 45 N. E. 187.

If the matters assigned as error are only causes for a new trial, no questions are raised. Singer v. Tormoehlen (1898), 150 Ind. 287, 289, 49 N. E. 1055; Migatz v. Stieglitz (1906), 166 Ind. 361, 365, 77 N. E. 400; George v. Robinson (1905), 36 Ind. App. 310, 312, 75 N. E. 607.

2. We might add, with reference to the first alleged error assigned, that the complaint in this case avers both a possession without right and an unlawful detention of the property sought to be replevied. Where the possession of the goods sought to be replevied was wrongfully obtained, no demand is necessary before the action for possession is commenced. Ahlendorf v. Barkous (1898), 20 Ind. App. 657, 659, 50 N. E. 887; Bates v. State, ex rel. (1881), 75 Ind. 463; Robinson v. Skipworth (1864), 23 Ind. 311.

3. 4. Appellant has failed to set out in his brief any part of the evidence in the case, and in its absence this court cannot determine whether proof of a demand was necessary. The only questions discussed in appellant’s brief under the third error assigned relate to the admission or sufficiency of the evidence, and neither the motion for a new trial nor any of its grounds are set out in appellant’s brief, nor is any of the evidence set out in such brief. These oinissons, under the rules of the Supreme Court and this court, deprive appellant of a consideration of this assigned error. Clause 5, Rule 22, Supreme and Appellate Courts. See Bartholomew v. Grimes (1912), 51 Ind. App. 614, 100 N. E. 12, and authorities cited.

Judgment affirmed.

Note.-—Reported in 100 N. E. 1062. See, also, under (1) 29 Cyc. 736; (2) 34 Cyc. 1406; (3) 2 Cyc. 1013. As to the demand and refusal preliminary to in’oceedings in replevin, see 80 Am. St. 753.