Faulkner v. Baltimore & O.S.W.R. Co.

• Decision Date: 27 October 1909
• Docket Number: No. 7,097.,7,097.
• Citation: 89 N.E. 511,44 Ind.App. 441
• Court: Indiana Appellate Court
• Parties: FAULKNER v. BALTIMORE & O. S. W. R. CO.

44 Ind.App. 441

89 N.E. 511

FAULKNER

v.BALTIMORE & O. S. W. R. CO.

No. 7,097.

Appellate Court of Indiana, Division No. 2.

Oct. 27, 1909.

Appeal from Circuit Court, Jackson County; J. H. Shea, Judge.

Action by Daily Faulkner against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for defendant, plaintiff appeals. Appeal dismissed, and petition for rehearing overruled.

F. W. Wesner, for appellant. Edward Barton, Robert S. Alcorn, Thomas Honan, and McMullens & McMullens, for appellee.

RABB, J.

Appellant most earnestly insists that the court erred in sustaining appellee's motion to dismiss the appeal in this case, and labors under the impression that it is the duty of the court to submit a written opinion, setting forth the specific grounds upon which the action of the court in dismissing the appeal is predicated. Such, however, is not the case. It is presumed that the motion to dismiss sufficiently points out the objections and defects that require the dismissal of the case; and whether or not a written opinion should be delivered by the court in passing on motions to dismiss appeals, or in the affirmance of judgments of the court below, is a matter entirely in the discretion of the court. In view of appellant's earnest insistence, however, we deem it not inappropriate to state the grounds of the court in dismissing this appeal.

A party appealing from the decision of a lower court to an appellate tribunal must present to that tribunal a record affirmatively showing some harmful error committed by the court below to his detriment. Every presumption is indulged in favor of the action of the court below, and, if but a partial record of its proceedings is presented on appeal, and the action of the trial court can be sustained on any conceivable state of facts, which the record, if complete, might have disclosed, the judgment will be affirmed. Rapp v. Kester, 125 Ind. 79, 25 N. E. 141, and cases there cited; Chestnut v. Southern Railway Co., 157 Ind. 509, 62 N. E. 32;Mankin v. Penn. Co., 160 Ind. 447, 67 N. E. 229;South Chicago R. Co. v. Zerler, 31 Ind. App. 488, 65 N. E. 599;South Bend, etc., v. Geidie, 24 Ind. App. 673, 57 N. E. 562. And unless the assignment of errors raises some question presented by the record, the appeal will be dismissed. The transcript is required to be authenticated by the certificate of the clerk, and, unless such certificate shows that such transcript contains a full, true, and complete copy of...