Brown v. Harding
| Citation | 136 Ind.App. 678,204 N.E.2d 680 |
| Decision Date | 01 March 1965 |
| Docket Number | No. 2,No. 19958,19958,2 |
| Parties | Anita E. BROWN, Bessie Cullins, Bessie Cullins, Guardian of Fay W. Cullins, Appellants, v. Georgia Voorhis HARDING, Zola Voorhis Collins, Appellees |
| Court | Court of Appeals of Indiana |
Courtney W. Kerwin, Kenneth E. Shockley, Kokomo, for appellants.
[136 INDAPP 680] Marshall, Hillis & Hillis & Button, Kokomo, for appellees.
The appellees brought this action in the Howard Circuit Court against the appellants to set aside two deeds to certain real estate described therein, and requesting the appointment of a trustee to hold said real estate. The appellees allege in their complaint that the grantor named in said deeds was vested only with a life estate; and that the appellees hold the fee simple title to said real estate subject to said reserved life estate.
The cause was tried by the court without the intervention of a jury. The issues were formed by the complaint, an answer in denial filed to the complaint, and an affirmative answer alleging the defense of prior adjudication.
The court below found for the appellees and entered judgment on its findings and appellants are herein appealing from this finding and judgment.
Appellants filed a motion for a new trial which the court overruled, and the overruling of the motion for a new trial is the basis of this appeal.
The appellees are challenging the jurisdiction of this court to hear this appeal. The jurisdictional question was raised the first time at the time of oral argument. The appellees challenge the jurisdiction of this court because of an invalid assignment of errors contained in the transcript.
The assignment of errors, as the same appears in the transcript, omitting formal parts, reads as follows:
'ASSIGNMENT OF ERRORS.
'Comes now the appellants and make the following assignment of errors:
[136 INDAPP 681] '1. The findings of the trial court is not sustained by sufficient evidence.
However, contained in the brief of the appellants under the heading 'CLERK'S CERTIFICATE', are the following recitals:
Thus it appears that there is a variance between the assignment of errors set forth in the transcript and the assignment of errors set forth in the brief.
Both the Appellate Court and the Supreme Court of Indiana have held many times that the assignment of errors constitutes the complaint on appeal. It is imperative, therefore, in order to confer jurisdiction on this court, that a proper assignment of errors be filed. Davis v. Pelley (1952), 230 Ind. 248, 251, 102 N.E.2d 910; Allmon et al. v. Review Board, etc., et al. (1953), 124 Ind.App. 212, 116 N.E.2d 115; see also Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, Secs. 2381, 2382, and authorities therein cited.
The question to be determined is whether or not the assignment of errors included in the transcript is a valid assignment in the light of Rule 2-6 of the Supreme Court of Indiana, as was in full force and effect on the date appellants filed their complaint in the trial court. The aforesaid Rule 2-6 provides, in part, the following:
'If, in the trial court, a motion for a new trial is filed, each error relied upon, however and whenever[136 INDAPP 682] arising up to the time of the filing of said motion, may be separately specified therein as a ground therefor, and an assignment of error to the effect that the trial court erred in overruling said motion shall be...
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