Cowger v. Land

• Citation: 12 N.E. 96, 112 Ind. 263
• Case Date: May 12, 1887
• Court: Supreme Court of Indiana

112 Ind. 263
12 N.E. 96

Cowger
v.
Land.¹

Supreme Court of Indiana.

May 12, 1887.

Appeal from circuit court, White county.

Reynolds & Sellers and W. E. Uhl, for appellant. R. Gregory, for appellee.

Howk, J.

In this case errors are assigned here by appellant, the plaintiff below, which call in question the overruling (1) of his demurrer to the fourth paragraph of appellee's cross-complaint; (2) of his demurrer to the fifth paragraph of such cross-complaint; and (3) of his motion for a new trial. In his brief of this cause in this court, appellant's learned counsel has confined his arguments to such questions only as are presented by or arise under the alleged error of the court below in overruling appellant's motion for a new trial. In the outset of his brief, counsel says: “The case involves two suits in one,-that of appellant against appellee on the complaint, and (2) that of appellee against appellant on the cross-complaint,-and the issues joined in one case were very different from those in the other. Practically, the whole action was a success and a failure to both parties; for, while the verdict was in favor of appellee on the complaint, it was, in effect, for the appellant on the cross-complaint, and vice versa. But appellee has assigned no cross-error, and there is but one of the cases on appeal,-that of appellant against appellee on the complaint, and issue joined thereon,-and I shall consider the evidence only with reference to its bearing on that branch of the case.” This is the view of appellant, as presented by his counsel, in relation to what is “on appeal” in this case. In this view, he is probably mistaken in regard to the extent of his appeal. The whole case, and all the issues joined therein, as well on the cross-complaint as on his complaint, are brought before this court by his appeal herein. Of course we consider such questions only as are presented by or arise under the errors assigned here by the appellant; but in the decision of these questions we explore the entire record, if necessary, in order to arrive at a right conclusion. Appellant may limit the questions to be considered here by his assignment of errors, and he may, and under our practice

[12 N.E. 97]

will, waive the consideration and decision here of any question which he has failed to discuss in his brief of the cause. In the case in hand, appellant has wholly failed to notice, even in his brief herein, the errors assigned by him upon the overruling of his demurrers to the fourth and fifth paragraphs of appellee's cross-complaint, and therefore it must be held that he has practically waived such errors.

Appellant sued appellee in this action upon an open account for medical services rendered and medicines furnished by appellant to the wife of appellee, at his special instance and request. Appellee answered in three paragraphs as follows: (1) A general denial of the complaint;...