Chicago Terminal Transfer Co. v. Walton

• Court: Indiana Supreme Court
• Writing for the Court: MONKS
• Citation: Chicago Terminal Transfer Co. v. Walton, 72 N.E. 646 (Ind. 1904)
• Decision Date: 14 December 1904
• Docket Number: No. 20,347.,20,347.
• Parties: CHICAGO TERMINAL TRANSFER CO. v. WALTON.

72 N.E. 646

CHICAGO TERMINAL TRANSFER CO.

v.WALTON.

No. 20,347.¹

Supreme Court of Indiana.

Dec. 14, 1904.

Appeal from Superior Court, Lake County; H. B. Tuthill, Judge.

Action by John W. Walton against the Chicago Terminal Transfer Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under section 1337u, Burns' Ann. St. 1901; Acts 1901, p. 590, c. 259. Appeal dismissed.

Jesse B. Barton and Jno. B. Peterson, for appellant. Crumpacker & Moran, for appellee.

MONKS, J.

This action was brought by appellee to recover damages for personal injuries received by his infant son through the alleged negligence of appellant. A trial of said cause resulted in a verdict, and, over a motion for a new trial, a judgment in favor of appellee. The errors assigned are: (1) The court erred in overruling appellant's demurrer to appellee's first paragraph of amended complaint; (2) that the court erred in overruling appellant's demurrer to the second paragraph of appellee's amended complaint; (3) that the court erred in overruling appellant's motion for a new trial of said cause.

Appellee insists that appellant has failed to comply with the requirements of rule 22 (55 N. E. v) in the preparation of its brief. Appellant has failed to set forth in its brief a copy of the second paragraph of the amended complaint, or the substance or a succinct statement thereof, and the demurrer thereto, as required by clause 5 of rule 22 of this court. For this reason the first and second assignments of error are waived. Perry, etc., Co. v. Wilson, 160 Ind. 435, 437, 438, 67 N. E. 183;Webster v. Major (Ind. App.) 71 N. E. 176, 177. The causes assigned for a new trial are not set out or a succinct statement thereof stated in appellant's brief, as required by said rule, for which reason they are waived. Perry, etc., Co. v. Wilson, 160 Ind. 437, 438, 67 N. E. 183;City of South Bend v. Turner (Ind. Sup.) 71 N. E. 657, 658;Nurrenbern v. Daniels (Ind. Sup.) 71 N. E. 889, 890.

All questions relative to the instructions given and offered are waived for the further reason that neither the language nor a succinct statement thereof is set forth in appellant's brief, as required by clause 5 of rule 22 (55 N. E. vi). Lake Erie, etc., R. Co. v. McFall (this term) 72 N. E. 552;Penn Mutual Life Ins. Co. v. Norcross (Ind. Sup.) 72 N. E. 132, 138;Cleveland, etc., R. Co. v. Stewart, 161 Ind. 242, 248, 68 N. E. 170;Barricklow v. Stewart (Ind. Sup.) 72 N. E. 128, 130;City of South Bend v. Turner (Ind. Sup.) 71 N. E. 657, 658;Nurrenbern v. Daniels (Ind. Sup.) 71 N. E. 889, 890. Moreover, even if the causes for a new trial, or a succinct statement thereof, were set out in appellant's brief, appellant is not in a position to ask the decision of the question whether the verdict is sustained by the evidence or is contrary to the law on account of its failure to comply with the requirements of clause 5 of rule 22 of this court, which requires that the brief “shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely.” Conner v. Andrews, etc., Co., 162 Ind. 338, 70 N. E. 376;Pittsburg, etc., R. Co. v. Wilson, 161 Ind. 701, 703, 704, 66 N. E. 899;Security, etc., Association v. Lee, 160 Ind. 249, 66 N. E. 745;Boseker v. Chamberlain, 160 Ind. 114, 118, 66 N. E. 448;Indiana, etc., R. Co. v. Ditto, 158 Ind. 669, 64 N. E. 222;Lake Erie, etc., R. Co. v. Shelley (Ind. Sup.) 71 N. E. 151, 155;Groves v. Hobbs, 32 Ind. App. 532, 70 N. E. 279;City of South Bend v. Turner (Ind. Sup.) 71 N. E. 657, 658;Nurrenbern v. Daniels (Ind. Sup.) 71 N. E. 889, 890. It has been uniformly held by this court that said rule requires that the brief be so prepared that all questions presented by the assignment of errors can be determined by an examination of the briefs without looking to the record, and that to the extent said rule is not complied with the same will be considered waived. Lake Erie, etc., R. Co. v. Shelley (Ind. Sup.) 71 N. E....