Evans v. Pope

Bowen, C. J. The appellee herein has filed a motion for the affirmance of this appeal on the ground that appellant’s brief does not conform to Rule 2-17, Rules of the Supreme Court, and that such brief does not disclose a good faith effort to comply with such Rule. While this court always seeks, wherever possible, to determine cases upon their merits, particularly where there is a good faith effort to comply with the Rules, we must conclude in the instant case that the appellant’s brief does not properly present any question for review. The concise statement of the record does not set forth the appellant’s complaint nor any of the other pleadings, or substance thereof, filed in the case. The brief recites that the judge found for the defendant and against the plaintiff, and that a judgment taken by default in the cause should not be set aside. There is no showing in the brief that a motion for a new trial was duly filed, nor that any motion *388 was filed with the trial court questioning any judgment of the trial court in this cause, nor is any motion for a new trial or its substance thereof set forth in the brief. There are other insufficiencies of the brief with reference to a proper condensed recital of the evidence and references to the transcript, but it would serve no useful purpose to further detail herein all of the insufficiencies of the brief. Appellant was made aware of the alleged deficiencies of the brief upon the filing of appellee’s motion to affirm the appeal, and following the filing of this motion there has been no attempt on the part of appellant to amend the briefs. For the reasons given herein we must conclude there has not been a good faith effort to comply with Rule 2-17 and we must concede the merits of appellee’s contention in this regard in her motion to affirm. Witte v. Witte et al. (1953), 123 Ind. App. 644, 113 N. E. 2d 166; United States ex rel. Smith v. Moore (1945), 223 Ind. 455, 61 N. E. 2d 461. Judgment affirmed. Note. — Reported in 141 N. E. 2d 924.