Harrold v. Whistler

Felt, P. J. This is an action for damages for breach of contract, which on trial by jury resulted in a verdict and judgment in favor of appellees. The errors assigned and relied on for reversal are: “(1) Error in overruling the separate and several demurrer of appellants’ to the second paragraph of the separate answer of appellee, Emma E. Whistler. (2) Error in overruling the separate and several demurrer of appellants to the second paragraph of the separate answer of appellee, Ephraim H. Whistler. (3) Error in overruling the j oint, separate and several motion of appellants for a new trial.” 1 Our attention is called by appellees to the fact that no memoranda accompanied the demurrers on which the first and second assigned errors are based. §344 Burns 1914, Acts 1911 p. 415. In construing the amendment of 1911, supra, it has been held to apply to answers, and therefore, a demurrer to an answer, to present any question on appeal, must be accompanied by a memorandum pointing out in a substantial manner the specific objections to, or insufficiencies of, such answer. Quality Clothes Shop v. Keeney (1915), 57 Ind. App. 500, 502, 106 N. E. 541. Any defect not so pointed out will be deemed [506] waived. §§344, 348 Burns 1914, Acts 1911 p. 415. 2. 3. [507] 2. [506] The only remaining assignment questions the ruling on the motion for a new trial. Appellants have not set out their motion for a new trial, or the substance thereof in their brief, and this omission is not supplied by appellees. It has been held by this and the Supreme Court that the burden is on appellants to present error, and there must be at least a good faith effort to comply with the rules of the court and a substantial compliance therewith to entitle an appealing party to a consideration of the questions sought to be presented. Buie 22, clause 5, requires appellant’s brief to contain a concise statement of so much of the record as fully presents every error and exception relied on, referring to the pages and lines of the transcript, which statement will be taken to be accurate and sufficient for a full understanding of the questions presented for decision, unless the, opposite party in his brief makes necessary corrections or additions. It also provides that following this statement the brief shall contain, under 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. “Buie 22 of the Supreme Court and this court has been construed in many cases to mean that briefs must be so prepared that all questions presented by the assignment of errors and relied on for reversal, ‘can be determined from an examination of the briefs without looking at the record, and to the extent said rule is complied with, the errors assigned will be determined and others will be considered waived.’ ” Wilt v. Board, etc. (1913), 54 Ind. App. 240, 242, 102 N. E. 878. Appellants by their failurs [507] to set out their motion for a new trial or the grounds thereof have waived their right to insist upon a determination of the questions arising thereunder. Wilt v. Board, etc., supra Tongret v Carlin (1905), 165 Ind. 489, 75 N. E. 887; Albaugh Bros., etc., Co. v. Lynas (1911), 47 Ind. App. 30, 32, 33, 93 N. E. 678; Cleveland, etc., R. Co. v. Beard (1913), 52 Ind. App. 105, 100 N. E. 392. 4. Furthermore, in appellants’ brief, under “concise statement oí the record” they say: “Appellants in their motion for a new trial set out nine alleged errors of the court in the admission and exclusion of evidence.” Under their “propositions and authorities” they set out a number of abstract propositions of law, none of which are directed to any specific ground of such motion, or to any specific error in the admission or exclusion of evidence, and therefore there is no such compliance with the rules as to present any question. Palmer v. Beall (1915), ante 208, 110 N. E. 218, and eases cited. No question being duly presented for consideration of this court, the appeal is dismissed. Note. — Reported in 111 N. E. 79. See, also, under (1) 3 Cyc 158; (2) 3 C. J. 1415-1420; 2 Cyc 1013; (3) 3 C. J. 1409; 2 Cyc 1014; (4) 3 C. J. 1412; 2 Cyc 1014.