Spitzer v. Miller

Indiana Court of Appeals

Spitzer v. Miller

73 N.E. 833, 35 Ind. App. 116, 1905 Ind. App. LEXIS 62

CourtIndiana Court of Appeals

DecidedMarch 16, 1905

DocketNo. 5,462

StatusPublished

Cited by5 cases

This text of 73 N.E. 833 (Spitzer v. Miller) 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

Spitzer v. Miller, 73 N.E. 833, 35 Ind. App. 116, 1905 Ind. App. LEXIS 62 (Ind. Ct. App. 1905).

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Opinion

Black, J.

The two' appellants were the plaintiffs. There are fifteen appellees, whoi were defendants. There were seven demurrers to the amended complaint, some being separate demurrers of single defendants, others joint demurrers of other defendants. There are fourteen specifications in the assignment of errors, the first two as follows: “(1) The court erred in sustaining the demurrer of the Kokomo Loan & Savings Association to the amended complaint, and in rendering judgment against appellants upon their failure to plead further. (2) The court erred in rendering judgment against the appellants upon 'their failure to plead further.” The other odd-numbered speci[117]*117fications are alike, and the same as the first, except that each of them is different from the others and from the first as to the name or names of demurring defendants. All the other even-numbered specifications are the same as the second, the same supposed error being thus stated in the same language seven times in the assignment.

1. The first, with each of the other odd-numbered specifications, attacks here as erroneous more than one action or ruling of the court — the sustaining of a demurrer and the rendition of judgment. The statute (§667 Bums 1901, §655 R. S. 1881) and rule four of this court require that an assignment of error shall be specific, and the rule expressly requires that each specification shall be complete in itself. Each supposed error must be specified;.the specifications must be distinct. Each specification in itself alone must be sufficient to require the court on appeal to review some action of the court below, and it must not be addressed to a number of separate supposed errors.

2. The even-numbered specifications do not relate to any specific action of the court to which an exception was saved, or to any action to which an exception could be taken effectually. To attack here a judgment which would follow as of course upon what preceded in the record, some proceeding must have been taken concerning the judgment rendered or to be rendered, and the action of the court therein should have been assigned here.

3. It thus appears from an inspection of the assignment of errors that this court can not look into the record for the purpose of reviewing any action of the court below. The entire assignment is ineffectual. It raises no question for decision except the question as to its own sufficiency. In such case we think the appeal should be dismissed. Counsel for some of the appellees named in the assignment of errors have filed a motion to dismiss the appeal fgr other reasons, which need not be examined.

Appeal dismissed.

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Black, J.

The two' appellants were the plaintiffs. There are fifteen appellees, whoi were defendants. There were seven demurrers to the amended complaint, some being separate demurrers of single defendants, others joint demurrers of other defendants. There are fourteen specifications in the assignment of errors, the first two as follows: “(1) The court erred in sustaining the demurrer of the Kokomo Loan & Savings Association to the amended complaint, and in rendering judgment against appellants upon their failure to plead further. (2) The court erred in rendering judgment against the appellants upon 'their failure to plead further.” The other odd-numbered speci[117]*117fications are alike, and the same as the first, except that each of them is different from the others and from the first as to the name or names of demurring defendants. All the other even-numbered specifications are the same as the second, the same supposed error being thus stated in the same language seven times in the assignment.

1. The first, with each of the other odd-numbered specifications, attacks here as erroneous more than one action or ruling of the court — the sustaining of a demurrer and the rendition of judgment. The statute (§667 Bums 1901, §655 R. S. 1881) and rule four of this court require that an assignment of error shall be specific, and the rule expressly requires that each specification shall be complete in itself. Each supposed error must be specified;.the specifications must be distinct. Each specification in itself alone must be sufficient to require the court on appeal to review some action of the court below, and it must not be addressed to a number of separate supposed errors.

2. The even-numbered specifications do not relate to any specific action of the court to which an exception was saved, or to any action to which an exception could be taken effectually. To attack here a judgment which would follow as of course upon what preceded in the record, some proceeding must have been taken concerning the judgment rendered or to be rendered, and the action of the court therein should have been assigned here.

3. It thus appears from an inspection of the assignment of errors that this court can not look into the record for the purpose of reviewing any action of the court below. The entire assignment is ineffectual. It raises no question for decision except the question as to its own sufficiency. In such case we think the appeal should be dismissed. Counsel for some of the appellees named in the assignment of errors have filed a motion to dismiss the appeal fgr other reasons, which need not be examined.

Appeal dismissed.

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Bluebook (online)

73 N.E. 833, 35 Ind. App. 116, 1905 Ind. App. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spitzer-v-miller-indctapp-1905.

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