City of Indianapolis v. Butzke

• Decision Date: 27 May 1940
• Docket Number: No. 27363.,27363.
• Citation: 217 Ind. 203,27 N.E.2d 350
• Parties: CITY OF INDIANAPOLIS v. BUTZKE.
• Court: Indiana Supreme Court

217 Ind. 203

27 N.E.2d 350

CITY OF INDIANAPOLIS

v.BUTZKE.

No. 27363.

Supreme Court of Indiana.

May 27, 1940.

Appeal from Clinton Court, Clinton County; Frank J. Russell, judge.

On petition for rehearing.

Petition denied.

For former opinion, see 26 N.E.2d 754.

Transferred from Appellate Court under section 4-218, Burns' Ind.St.1933.Edward H. Knight, Michael B. Reddington, Floyd J. Mattice, and Oscar C. Hagemier, all of Indianapolis, and Earl F. Gruber, of Frankfort, for appellant.

Little, Little & Horn, of Indianapolis, Floyd Christian, of Noblesville, and Thomas Ryan and Robison & Robison, all of Frankfort, for appellee.

FANSLER, Judge.

On petition for rehearing, the appellee contends that the court erred in failing to give a decision in writing, upon his contention that the appellant's brief does not comply with clause 6 of rule 18 of the rules of this court concerning the preparation of briefs, contrary to the direct mandate of the Constitution.

It is well settled, and has been repeatedly announced by this court, that if a good-faith effort to comply with the rule is disclosed, and there is a substantial compliance so that the court can understand the questions sought to be presented, the brief is sufficient. See Letz Manufacturing Co. et al. v. Public Service Commission of Indiana, 1936, 210 Ind. 467, 4 N.E.2d 194;Smith, Adm'r v. Miller, Guardian, 1935, 209 Ind. 55, 197 N.E. 892; and Slinkard v. Hunter, 1936, 209 Ind. 475, 199 N.E. 560. Numerous cases to the same effect might be cited. The breach of the rule in this case is in the letter and not in the substance. The questions sought to be presented are clear, and there can be no doubt as to the errors to which the authorities and the argument are directed.

If, technically, the brief may be said not to conform to the letter of the rule, so also it may be said that the objection of the appellee, that this court has failed to follow the mandate of the Constitution, is not sustained by the letter of the Constitution. The provision relied upon is section 5 of article 7, which is as follows: ‘The Supreme Court shall, upon the decision of every case, give a statement in writing of each question arising in the record of such case, and the decision of the Court thereon.’ The ‘record’ is generally considered as referring to the record of the proceedings in the trial court brought to this court for review. The purpose of the appeal is to scrutinize the record of the court below for error....