Rahke v. McNulty

Shea, P. J. This was an action to recover money alleged to have been lost in gambling. Appellant states in his brief that he relies on the following errors in the proceedings for a reversal of the judgment of the court below: (1) The court erred “in sustaining appellee’s demurrer to appellant’s set-off.” (2) The “court erred in not instructing [616] jury to find for appellant.” (3) The “court erred in giving instructions Nos. 4 and 5 and in refusing to give all of the instructions asked by appellant.” (4) The “court erred in overruling appellant’s motion for a new trial.” 1. 2. 3. 4. 5. No question is presented by the first point urged by appellant. Neither the demurrer to appellant’s set-off nor the substance thereof is set out in appellant’s brief. Under numerous authorities, this question is not properly presented. Pry v. Ramage (1911), 176 Ind. 446, 447, 96 N. E. 385; Knickerbocker Ice Co. v. Gray (1905), 165 Ind. 140, 142, 72 N. E. 869, 6 Ann. Cas. 607; State v. Lukins (1909), 43 Ind. App. 341, 87 N. E. 246; Citizens Nat. Bank v. Alexander (1905), 34 Ind. App. 596, 73 N. E. 279. The second and third points may be disposed of together. All questions upon alleged errors of the trial court in giving or refusing to give instructions must be presented by motion for a new trial. Neither the motion for a new trial nor the substance thereof appears in appellant’s brief. Therefore, no error of the trial court can be predicated upon the rulings with respect to the giving or refusing to give instructions, if the questions were otherwise properly presented, but there has also been a complete failure to set out the instructions to which objections are made. Griffith v. Anderson Iron Mfg. Works (1905), 36 Ind. App. 703. It may be further suggested that an assignment that “The court erred in giving instructions Nos. 4 and 5 and in refusing to give all of the instructions asked by appellant” presents no question. Appellant’s fourth point presents no question for the reason that neither the motion for a new trial nor the substance thereof is set out in appellant’s brief. Bennett v. Root Furn. Co. (1911), 176 Ind. 606, 608, 96 N. E. 708; Dillon v. State (1911), 48 Ind. App. 495, 96 N. E. 171; Price v. Swartz (1912), 49 Ind. App. 627, 97 N. E. 938. [617] There is a complete failure in appellant’s brief to comply with Rule 22 of this court. Judgment affirmed. Note.—Reported in 104 N. E. 523. See, also, under (1) 2 Cyc. 1014; (2) 29 Cyc. 744; (3) 2 Cyc. 1013; (4) 2 Cyc. 992-995; (5) β Cyc. 176.