Wolf v. Akin

104 N.E. 308, 55 Ind. App. 589, 1914 Ind. App. LEXIS 246

• Court: Indiana Court of Appeals
• Decided: February 27, 1914
• Docket: No. 8,236
• Status: Published

Opinion

Hottel, J.

This is an appeal from a judgment recovered by appellee on a note executed to him by appellant and Andy Fisher. . There was a trial by jury resulting in a verdict for appellee in the sum of $140.

1. Appellant, in his brief, states that the sole issue in the case was whether appellant executed the note as principal or surety and, that the only error assigned in this court is the overruling of appellant’s motion for a new trial. On this statement in such brief, we are asked by appellee to dismiss the appeal on the ground that neither said motion for a new trial nor its substance is set out in appellant’s brief. The only reference to the grounds of such motion which we find in the brief is in the argument where it is stated that “the motion for a new trial which was overruled by the court, to which ruling the appellant excepted, was based on three reasons, first, that the verdict was not sustained by sufficient evidence, second, that it was contrary to law, the third was waived by the appellant.” Assuming without deciding that this is sufficient to supply the defect in the brief urged by appellee and, that it shows that one of the grounds of such motion is that of the sufficiency of the evidence to sustain the verdict, other failures of appellant to comply with the rules "of this court prevent a reversal of the case. One requirement of Rule 22 is as follows: “The brief shall contain, under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in support of them * * *. No alleged error or point, not contained in this statement of points, shall be raised afterwards, either by reply brief, or in oral or printed argument, or on petition for rehearing.”

There is nothing in said brief under the heading, “Points and Authorities” to indicate what error, if any, is relied on, to which such points and authorities are directed and intended to apply. We can only infer from the statement above quoted, found in the argument, that they are intended to apply to one of the two grounds of the motion for a new trial there indicated; and where the insufficiency of the evidence is the ground of the motion for new trial relied on for reversal, clause 5 of said rule of this court, requires that appellant’s brief shall “contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely.” Appellant’s brief does not measure up to the requirements of this provision of said rule, as construed by both this and the Supreme Court; and this court could not on the showing made in such brief say, that there should be a reversal of the judgment on account of the insufficiency of the evidence to sustain the decision of the trial court.

On account of said defects and omissions in said brief, appellant has failed to present to this court any reversible error. Pittsburgh, etc., R. Co. v. Greb (1905), 34 Ind. App. 625, 632, 633, 73 N. E. 620; Welch v. State, ex rel. (1905), 164 Ind. 104, 107, 108, 72 N. E. 1043; Chandler Coal Co. v. Sands (1908), 170 Ind. 623, 630, 85 N. E. 341; Conner v. Andrews Land, etc., Co. (1904), 162 Ind. 338, 350, 70 N. E. 376; State, ex rel. v. Board, etc. (1906), 167 Ind. 276, 287, 288, 78 N. E. 1016.

Judgment affirmed.

Note.—Reported in 104 N. E. 308. See, also, 2 Cyc. 1013, 1017.