Whipple v. Cain

127 N.E. 283, 73 Ind. App. 285, 1920 Ind. App. LEXIS 109

• Court: Indiana Court of Appeals
• Decided: May 11, 1920
• Docket: No. 10,360
• Status: Published

Opinion

Nichols, C. J.

This was an action by appellee against appellant to recover on account of damages to appellee’s automobile and to his person occasioned by collision between appellee’s and appellant’s cars.

The only errors that are properly assigned are: First, the overruling of appellant’s motion for judgment in his favor upon the jury’s answers to interrogatories, notwithstanding the general verdict; and, second, in overruling appellant’s motion for a new trial.

1. The first error is waived for the reason that appellant has not set out the complaint, nor stated the substance thereof, in his brief. Appellant must so prepare his brief that the questions sought to be presented therein can be determined from such brief without resort to the record. Miller v. Berne Hardware Co. (1917), 64 Ind. App. 473, 116 N. E. 54, 55; Keeley v. Bradford (1916), 62 Ind. App. 683, 685, 113 N. E. 748. In determining whether judgment should be granted on the answers to interrogatories notwithstanding the general verdict the court looks only to the pleadings, the verdict, interrogatories and answers. Talbot v. Meyer (1915), 183 Ind. 585, 109 N. E. 841; 6 Ind. Digest, Judgments §199 (y).

2. Appellant has in argument set out certain interrogatories and answers, but the argument is not a necessary part of the brief, and matters not set forth in the essential part of the brief will not be considered. Moore v. Ohl (1917), 65 Ind. App. 691, 116 N. E. 9. Even if we might consider such interrogatories and answers as they appear in the argument, still this would not help appellant because of the absence of the complaint.

3. The second assignment of error is waived for the reason that appellant has wholly failed to set out in his brief his motion for a new trial. Robbins v. Bank, etc. (1917), 186 Ind. 573, 117 N. E. 562; Farmers’ Mutual Tel. Co. v. Duncan (1918), 187 Ind. 658, 116 N. E. 420; M. Rumely Co. v. Major (1917), 64 Ind. App. 41, 115 N. E. 337; Miller v. Berne Hardware Co., supra.

Appellant attempts to protect himself against the irregularities in his brief by citing the act concerning civil procedure by the legislature of 1917. Acts 1917 p. 523, §691a et seq. Burns’ Supp. 1918. As to the questions involved in this case, such act has been declared unconstitutional by the Supreme Court. Solimeto v. State (1919), 188 Ind. 170, 122 N. E. 578. The judgment is affirmed.