Zeigler v. Burks

Hunter, Acting C. J. — This matter is pending before the .court on the appellee’s motion to affirm or in the alternative to dismiss the appeal. The appellant filed his transcript and assignment of errors in this court on December 7, 1965, and his brief was filed on September 12, 1966. The only error assigned is that the trial court erred in overruling appellant’s motion for new trial. The appellant’s motion for new trial was as follows: (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. On an examination of the appellant’s brief, it is demonstrated that the question attempted to be presented requires a consideration of the evidence. In the praecipe filed with the clerk of the trial court there is no request for a bill of exceptions. There is no evidence in the transcript and there is no evidence contained in the brief. In fact, under the appellant’s so-called “condensed recital of the evidence” which under the Supreme Court Rule should be set forth in narrative form there [70] is only a conclusion of the appellant as to what the evidence revealed. Therefore, since the appellant states under the title “errors relied upon for reversal” only that the court erred in overruling appellant’s motion for new trial, the appellant has failed to comply with the requirements of Rule 2-17 of this court. Where appellant’s brief fails completely to comply with the rules of this court and fails to present for review and judgment the alleged errors, no question is presented to this court and the judgment of the lower court should be affirmed. Bennett v. Drew Corp. (1956), 126 Ind. App. 557, 133 N. E. 2d 886; Evans v. Pope (1957), 127 Ind. App. 386, 141 N. E. 2d 924; Justice v. Tripp (1959), 130 Ind. App. 187, 158 N. E. 2d 809. As it has been shown by the transcript and appellant’s brief that appellant has failed to present the question sought to be raised by her assignment of errors, the judgment of the Delaware Superior Court No. 2 should be affirmed. Judgment affirmed. For the Court in banc. Note. — Reported in 222 N. E. 2d 405.