Dillon v. State

• Decision Date: 24 October 1911
• Docket Number: No. 7,995.,7,995.
• Citation: 48 Ind.App. 495,96 N.E. 171
• Parties: DILLON v. STATE.
• Court: Indiana Appellate Court

48 Ind.App. 495

96 N.E. 171

DILLON

v.STATE.

No. 7,995.

Appellate Court of Indiana, Division No. 2.

Oct. 24, 1911.

Appeal from Circuit Court, Jefferson County; Hiram Francisco, Judge.

Action by the State of Indiana against Thomas B. Dillon, Michael Noon's Administrator. Judgment for plaintiff, and defendant appeals. Affirmed.

Perry E. Bear and Edwin C. Davis, for appellant. Thomas M. Honan, Edwin Corr, Thos. H. Branaman, and Jas. E. McCullough, for the State.

ADAMS, J.

The style of this action, originally commenced before the mayor of the city of Madison, Ind., was “State of Indiana v. Michael Noon, in rem Four Barrels of Whisky.” The purpose of the action was to have the whisky seized by the officers and destroyed, pursuant to section 8338 et seq., Burns' 1908, governing the seizure of intoxicating liquors. Upon the filing of an affidavit as required by law, a search warrant was issued and served by taking into possession four barrels of whisky, the property of Michael Noon. Upon the hearing before the mayor, it was adjudged that said liquors were kept for the purpose of being sold in violation of the laws of the state, and the sheriff was ordered to destroy the same. Michael Noon appealed to the Jefferson circuit court, where the cause was submitted to the court without a jury. The finding was for the state, and the judgment was that the four barrels of whisky, together with the vessels in which the same was contained, should be destroyed, and the sheriff was ordered to destroy the same within 15 days from the date of the judgment. Appeal was taken to this court by the appellant, administrator, and the only error argued and relied upon for reversal is that the court erred in overruling appellant's motion for a new trial.

[1] It is first urged by the appellee that no question is presented to this court for the reason that neither the motion for a new trial nor the substance thereof is set out in appellant's brief, as required by the rules. The brief only shows that Thomas Dillon, administrator, filed his motion for a new trial, which the court overruled, and to which ruling the appellant at the time excepted. Under the rule, as declared by numerous decisions of the Supreme and this court, the objection of appellee is well taken. Pittenger v. Ramage, 40 Ind. App. 486, 487, 82 N. E. 478;Tongret v. Carlin, 165 Ind. 489, 75 N. E. 887;Gregg v. Gregg, 37 Ind. App. 210, 219, 75 N. E. 674.

[2] But, assuming that we are warranted in examining the argument to ascertain the grounds of the motion for a new trial, still counsel for appellee contend that no question is presented, as the rules require that, where the insufficiency of the evidence to sustain the verdict or finding is assigned, the brief shall contain a condensed recital of the evidence in narrative form, so as to present the substance clearly and concisely. In the brief of appellant this rule is not observed. The recital...