German Fire Ins. Co. v. Zonker

Decision Date22 January 1915
Docket NumberNo. 8404.,8404.
Citation108 N.E. 160,57 Ind.App. 696
PartiesGERMAN FIRE INS. CO. v. ZONKER et al.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Allen County; Carl Yaple, Judge.

Action by William A. Zonker and another against the German Fire Insurance Company of Indiana. From a judgment for plaintiffs, defendant appeals. Affirmed.

Vesey & Vesey, of Ft. Wayne, Hubert E. Hartman, of Detroit, Mich., and Merrill Moores and Walter Myers, both of Indianapolis, for appellant. Leonard, Rose & Zollars, of Ft. Wayne, for appellees.

FELT, J.

This suit was brought in the De Kalb circuit court by William A. Zonker against the German Fire Insurance Company of Indiana, Edward Zonker, and Jacob Perkins, guardian of Peter Reinoehl, a person of unsound mind, to recover on a fire insurance policy and to settle certain claims relating to mortgages on the property insured. The venue was changed to the Allen superior court, where issues were formed and a trial had, which resulted in a verdict for the plaintiff in the sum of $5,138, for the cross-complainant Edward Zonkers in the sum of $925, and for the cross-complainant Jacob Perkins, guardian, in the sum of $183. Over appellant's motion for a new trial, judgment was rendered on the verdict, from which this appeal was taken.

[1] Appellant has assigned as error that the amended complaint does not state facts

sufficient to constitute a cause of action and that the court erred in overruling its motion for a new trial. Appellant has not set out the complaint, nor stated its substance, in its brief, nor has it stated any point or proposition relating thereto, or in any way shown its insufficiency. Any objection to the sufficiency of the complaint is therefore waived. No attempt was made to bring the instructions into the record by bill of exceptions, but appellant evidently undertook to do so in pursuance of Acts 1903, p. 338 (section 561, Burns' 1908 Statutes).

[2] The record contains the following entry:

“And said jury having heard the arguments of the respective counsel herein, and having been duly instructed by the court, all of which instructions requested, whether given or refused, and all instructions given by the court on its own motion, are now filed with the clerk of the court at the close of the instructions herein to said jury, and are in these words.”

Following this entry in the transcript the clerk has set out the instructions given by the court of its own motion, but has not set out those requested by the parties. The transcript was filed in this court on January 29, 1912, and appellant filed its brief on September 30, 1912.

On May 5, 1913, appellees filed their briefs and petition for oral argument. In this brief appellee pointed out that appellant had not complied with the rules of the court in preparing its brief, so as to present any question relating to the motion for a new trial, and also showed that the instructions had not been brought into the record; that only instructions 1-6, given by the judge, were filed with the clerk and properly in the record; “that the record does not disclose that the instructions claimed to have been tendered by the appellee were ever in fact filed with the clerk;” that “before instructions can be brought into the record under this statute it is an essential prerequisite that they must be filed with the clerk, and this fact must be affirmatively disclosed by the record.” Under points and authorities appellee restated the foregoing propositions and cited numerous decisions in support thereof, among which are the following: Indianapolis, etc., Co. v. Walsh, 45 Ind. App. 42, 90 N. E. 138;Thieme, etc., Co. v. Kessler, 47 Ind. App. 284, 94 N. E. 338;Muncie, etc., Co. v. Hall, 173 Ind. 95, 89 N. E. 484;Indianapolis, etc., Ry. Co. v. Ragan, 171 Ind. 569, 86 N. E. 966.

On November 5, 1913, appellant filed its reply brief, in which it asserts that appellee's brief deals in “sophistry” and “technicalities,” and states that appellant insists that it has complied in all fairness and good faith with the rules of this court, and such a substantial conformity entitles it to a hearing on the merits,” and in support of this position cites the following: Kirk v. Macy, 53 Ind. App. 17, 101 N. E. 108;Berkey v. Rensberger, 49 Ind. App. 226, 96 N. E. 32;Inland Steel Co. v. Harris, 49 Ind. App. 157, 95 N. E. 271;Geisendorff v. Cobbs, 47 Ind. App. 573, 94 N. E. 236. It will be found on examination that all of the cases cited by appellant deal with briefs which evidenced a substantial compliance with the rules of the court, and that none of them decide the point in reference to the requirements of the statute under which it undertook to bring the instructions into the record. The case was distributed prior to December 1, 1914, and was set for oral argument on that date, and on the same day appellant filed its petition for a certiorari, in which it states that only the instructions given by the court on its own motion are properly in the transcript, and that the instructions requested by the parties are omitted therefrom, and requests that the writ issue directing the clerk to duly certify said instructions to this court, and to correct an alleged error in the transcript where it states:

Defendants submit written instructions, with the request that the same be given to the jury by the court herein, in these words: (Motion not on file.)

Appellant's attention was specifically called to the condition of the record in regard to the instructions in May, 1913, by appellee's briefs, and in November following it asserted its satisfaction with the record and briefs, and took no steps to correct either until December 1, 1914, about 19 months subsequent to the time its attention was so called to the fact that the instructions were not in the record, and almost 11 months subsequent to the filing of its reply briefs as aforesaid. On this record we hold that appellant has waived any right it may originally have had to correct the transcript, by extreme delay both before and after its attention was called to the condition of the transcript, and by the further fact that when its attention was called thereto it asserted its satisfaction therewith in its reply briefs.

Where parties desire to correct a record found defective, it is their duty to use reasonable diligence in so doing, and, failing so to do, they waive such right. This rule is especially applicable where a party, after having his attention called to the defect and to decisions bearing thereon, expressly affirms his satisfaction with the record as presented, and for a long time thereafter takes no steps to correct the same. Elliott, Appellate Procedure, § 208; Bannister v. Allen, 1 Blackf. 414;Kesler v. Myers, 41 Ind. 543-555;Schrichte v. Stites' Estate, 127 Ind. 472, 26 N. E. 77, 1009.

For the foregoing reasons the motion for a certiorari is overruled.

[3][4] Furthermore, in the case at bar, the court could not at this late date permit the amendment of the briefs, even if it granted the writ of certiorari, and without amendment the briefs are insufficient to present any errors relating to the instructions. Turner v. Hartman, 49 Ind. App. 224, 97 N. E. 19; section 210, Ewbank's Manual Practice. It is not shown that any exceptions were taken to the giving, or the refusal, of any particular instruction, and no specific reason is presented to show error in the giving of any particular instruction. Under the heading, “What the Issues Were,” it is stated that “the defendant insurance company also tendered certain instructions, which were refused, and exceptions were taken at the time,” and that exceptions were taken to the instructions given by the court of its own motion; but the exceptions are not shown, nor does it appear to what instructions they were taken.

Such general statements regarding the exceptions are insufficient. Fairbanks v. Warrum (Ind. App.) 104 N. E. 983;Inland Steel Co. v. Smith, 168 Ind. 245-252, 80 N. E. 961:Ayers v. Hobbs, 41 Ind. App. 576-579, 84 N. E. 554. To present any question relating to an instruction, it must appear that an exception was taken to the particular instruction of which complaint is made, and it must be definitely pointed out wherein the instruction is erroneous, indefinite, or uncertain. Likewise, if the alleged error consists in the refusal of an instruction tendered, it must be definitely pointed out wherein such refusal was error. Catterlin v. City of Frankfort, 87 Ind. 45-55;Pittsburgh, etc., Ry. Co. v. Lightheiser, 168 Ind. 438-460, 78 N. E. 1033;Sullivan v. Hoopengarner, 49 Ind. App. 54-56, 96 N. E. 620;Cleveland, etc., Ry. Co. v. Bowen, 179 Ind. 142, 100 N. E. 465.

[5] In appellant's briefs no proposition or point is stated and applied to any definite question arising on the overruling of the motion for a new trial. Under “Points and Authorities” in a...

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5 cases
  • Sweaney & Smith Co. v. St. Paul Fire & Marine Ins. Co. of St. Paul, Minnesota
    • United States
    • United States State Supreme Court of Idaho
    • 30 Marzo 1922
    ......920; Stine. Lumber etc. Co. v. Hemenway, 32 Idaho 163, 179 P. 505;. Robinson v. St. Maries Lumber Co., 32 Idaho 651, 186. P. 923; German Fire Ins. Co. v. Zonker, 57 Ind.App. 696, 108. N.E. 160.). . . Appellants. are not entitled to a diminution of the record and are. ......
  • Vandalia Coal Co. v. Butler
    • United States
    • Court of Appeals of Indiana
    • 19 Marzo 1918
    ...both courts of appeal in this state. Mutual Life Ins. Co. v. Finkelstein (1914) 58 Ind. App. 27, 107 N. E. 557;German, etc., Ins. Co. v. Zonker, 57 Ind. App. 696, 108 N. E. 160;New v. Jackson (1911) 50 Ind. App. 120, 95 N. E. 328;Knapp v. State, 168 Ind. 153, 70 N. E. 1076, 11 Ann. Cas. 604......
  • Vandalia Coal Company v. Butler
    • United States
    • Court of Appeals of Indiana
    • 19 Marzo 1918
    ...... by both courts of appeal in this state. Mutual Life Ins. Co. v. Finkelstein (1915), 58 Ind.App. 27, 107. N.E. 557; German Fire ns. Co. v. Zonker. (1915), 57 Ind.App. 696, 108 N.E. 160; New v. Jackson (1912), 50 ......
  • Sweaney & Smith Co. v. St. Paul Ins. Co., 35 Idaho 303 (Idaho 3/30/1922)
    • United States
    • United States State Supreme Court of Idaho
    • 30 Marzo 1922
    ...etc. Co. v. Hemenway, 32 Ida. 163, 179 Pac. 505; Robinson v. St. Maries Lumber Co., 32 Ida. 651, 186 Pac. 923; German Fire Ins. Co. v. Zonker, 57 Ind. App. 696, 108 N. E. 160.) Appellants are not entitled to a diminution of the record and are estopped from making application for the same an......
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