Myers v. City of Jeffersonville

Indiana Supreme Court

Myers v. City of Jeffersonville

40 N.E. 796, 144 Ind. 567, 1895 Ind. LEXIS 362

CourtIndiana Supreme Court

DecidedMay 28, 1895

DocketNo. 17,619

StatusPublished

Cited by1 cases

This text of 40 N.E. 796 (Myers v. City of Jeffersonville) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Myers v. City of Jeffersonville, 40 N.E. 796, 144 Ind. 567, 1895 Ind. LEXIS 362 (Ind. 1895).

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Opinion

McCabe, J.

This was a suit brought by the appellant against the appellees, mayor and common council of said city, to enjoin the issuing and selling certain bonds of said city. The circuit court overruled a demurrer to an affirmative answer by the appellees, and the plaintiff, appellant, refusing to plead further, and standing by his demurrer, the defeixdants, appellees, had judgment that appellant take nothing by his suit.

The appellant has assigned that ruling as error. He has filed no brief, and has expressly declined to do [568]*568so by filing a paper in which he says, ‘ ‘ The appellant hereby waives the filing of a brief in the above case, and requests that the case may be decided upon the appellees’ brief.” The appellees alone have filed a brief, but they have filed no written request that the cause be passed upon by this court. Rule 20 of this court requires the appellant to file a brief within a certain specified time after the cause is submitted, in default of which the clerk is required to enter an order dismissing the appeal, unless the appellees shall have filed with the clerk a written request that the cause be passed upon by the court. As before observed, this has not been done.

Filed May 28, 1895; petition for rehearing overruled April 16, 1896.

It has often been decided by this court that the failure by the appellant to brief an error assigned is a waiver of such error.

The express declination of the appellant to file a brief is a waiver of the error he has assigned. The appellees have no legal right in the absence of the rule mentioned to require this court to decide the error assigned by the appellant, because the appellees have got all they asked for in the trial court. But they could have procured the decision of the question presented by the assignment of error by complying with the rule.

The error assigned having been waived, the appeal is dismissed.

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McCabe, J.

This was a suit brought by the appellant against the appellees, mayor and common council of said city, to enjoin the issuing and selling certain bonds of said city. The circuit court overruled a demurrer to an affirmative answer by the appellees, and the plaintiff, appellant, refusing to plead further, and standing by his demurrer, the defeixdants, appellees, had judgment that appellant take nothing by his suit.

The appellant has assigned that ruling as error. He has filed no brief, and has expressly declined to do [568]*568so by filing a paper in which he says, ‘ ‘ The appellant hereby waives the filing of a brief in the above case, and requests that the case may be decided upon the appellees’ brief.” The appellees alone have filed a brief, but they have filed no written request that the cause be passed upon by this court. Rule 20 of this court requires the appellant to file a brief within a certain specified time after the cause is submitted, in default of which the clerk is required to enter an order dismissing the appeal, unless the appellees shall have filed with the clerk a written request that the cause be passed upon by the court. As before observed, this has not been done.

Filed May 28, 1895; petition for rehearing overruled April 16, 1896.

It has often been decided by this court that the failure by the appellant to brief an error assigned is a waiver of such error.

The express declination of the appellant to file a brief is a waiver of the error he has assigned. The appellees have no legal right in the absence of the rule mentioned to require this court to decide the error assigned by the appellant, because the appellees have got all they asked for in the trial court. But they could have procured the decision of the question presented by the assignment of error by complying with the rule.

The error assigned having been waived, the appeal is dismissed.

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Bluebook (online)

40 N.E. 796, 144 Ind. 567, 1895 Ind. LEXIS 362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-city-of-jeffersonville-ind-1895.

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