Rose v. City of Jeffersonville

Erwin, J. — Appellant filed his petition in the Clark Circuit Court for the vacation of Eighth street, in the city of Jeffersonville, from Wall street east for a distance of 188.7 feet, more or less, to the east side of the alley midway of Blocks Nos. 78 and 94. The petition was based on the Acts of 1907 pp. 617, 618, being §§8910-8916 Burns 1914. Appellee filed its remonstrance alleging that the street proposed to be vacated is necessary to the growth of the city; that the vacation would leave real estate of remonstrant without ingress or egress by means of a public way; and that such vacation would cut off the public’s access to some church, school or other public building or grounds. The cause was tried by the court resulting in a judgment denying the vacation of the street Appellant filed a motion for a new trial upon the grounds: (1) That the decision of the court is not sustained by sufficient evidence,' and (2) that .the decision of the court is contrary to law. Appellee contends in its brief that appellant’s brief is insufficient to present any question to this court for decision. It claims that the brief does not [579] comply with Rule 22 of this court in that under the title of “Statement of the Record” neither the petition, remonstrance, finding of the court, entry showing the filing of the motion for new trial, motion for new trial, entry showing the ruling on the motion for new trial and exceptions thereto, entry showing judgment, nor entry showing the filing of the general' bill of exceptions are shown in full or in substance. 1. It is also contended that the brief does not contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely, as required by the fifth clause of Rule 22 of this court. Appellant’s brief gives part of the evidence of some of the witnesses and shows that some parts of the evidence have been omitted, except for a conclusion of the writer of the brief as to what the evidence shows. This is not sufficient. That which is required by the rule is the substance of what the witnesses have said in giving their testimony. Webster v. Bligh (1911), 50 Ind. App. 56, 98 N. E. 73; Cleveland, etc., R. Co. v. Bowen (1912), 179 Ind. 142, 100 N. E. 465; McClellan v. Thomas (1915), 183 Ind. 310, 109 N. E. 44. For this reason alone this court is justified in affirming the judgment herein. Supreme Tribe, etc. v. Kraft (1915), 183 Ind. 427, 428, 109 N. E. 403. 2. 3. The record in this cause shows that there is a conflict in the evidence upon the issue presented to the trial court. The finding of the trial court must be sustained on appeal if there is some evidence to support it. As this court has no power to weigh conflicting evidence, it can consider only the evidence most favorable to appellee in passing upon the question thus presented by the motion for new trial. Western Union Tel. Co. v. Louisville, etc., R. Co. (1915), 183 [580] Ind. 258, 108 N. E. 951; Southern Product Co. v. Franklin Coil Hoop Co. (1915), 183 Ind. 123, 129, 106 N. E. 872. There being no reversible error presented by the record, the judgment is affirmed. Note. — Reported in 114 N. E. 85.