City of Lebanon v. De Bard, 16709.

• Decision Date: 05 December 1941
• Docket Number: No. 16709.,16709.
• Citation: 110 Ind.App. 79,37 N.E.2d 718
• Parties: CITY OF LEBANON v. DE BARD et al.
• Court: Indiana Appellate Court

110 Ind.App. 79

37 N.E.2d 718

CITY OF LEBANON

v.DE BARD et al.

No. 16709.

Appellate Court of Indiana, in Banc.

December 5, 1941.

Appeal from Circuit Court, Boone County; Horace L. Hanna, Judge.

Action by Russell DeBard and others against the City of Lebanon, Indiana, for reinstatement as members of the fire department of the defendant city. From a judgment in favor of plaintiffs, defendant appeals.

Judgment affirmed.

Thomas O. Beck, of Lebanon, for appellant.

Ira Sharp, of Lebanon, for appellees.

BLESSING, Judge.

This is an appeal from a judgment of the Boone Circuit Court re-instating the appellees as members of the Fire Department of the appellant city. The appellees had been dismissed from said department by action of the city authorities and following their dismissal brought their action, in the nature of an appeal, for re-instatement, pursuant to the provisions of Chapter 282 of the Acts of 1935, p. 1395; Section 48-6105, Burns' 1933 (Supp.), Section 11478, Baldwin's Ind.Statutes 1934, Supp. 1935.

The case was tried by the court upon appellees' amended verified complaint and the general denial interposed by the statute. No money judgment was prayed in the complaint but in addition to the prayer for restoration to their former positions, the appellees asked that they be granted all proper relief in the premises.

The trial court after hearing the evidence rendered judgment setting out such facts as are required by the statute and reinstating appellees to their former positions as firemen on appellant's fire force. In addition to this relief the court decreed that each of the appellees was entitled to all the salary, wages and emoluments of his position from and after the first day of January, 1939 (the date of their dismissal), in the same manner and to the same extent as though said dismissal and discharge had not occurred.

[1][2][3][4] The only assignment of error is predicated on the overruling of a motion for a new trial. Neither the motion for a new trial nor the ruling thereon is set out in the brief and there is no reference to the page in the transcript where such motion or the ruling thereon may be found. Under the heading, “Errors relied on for reversal” the appellant states that “the court erred in over-ruling appellant's motion for a new trial herein on each of the following grounds towit”: here follows what purports to be the specifications in the motion. With this situation before us it is apparent that appellant's brief is defective in that there is a failure to comply with the first part of the fifth section of rule 18 of the 1937 Rules of the Supreme and Appellate Courts, wherein it is required that there must be 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.” If we are to overlook this defect in appellant's brief we are of the opinion that no reversible error is presented to this court. The first specification in the motion for a new trial is the overruling of appellant's motion for a separation of causes of action. This is not ground for a new trial, but treating the motion for a new trial as a petition for rehearing provided for by the Acts of 1935, p. 1395, and conceding without deciding, that any ruling of the trial court may be attacked if such ruling is specified in said petition as constituting error, the specification in ...