Glaser v. Jones
| Decision Date | 27 June 1918 |
| Docket Number | No. 9628.,9628. |
| Citation | 120 N.E. 44,68 Ind.App. 192 |
| Parties | GLASER v. JONES. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.
Action by William H. Jones against Israel Glaser. Judgment for plaintiff, and defendant appeals. Affirmed.
Samuel B. Pettengill, Orie Parker, and Charles Weidler, all of South Bend, for appellant. Eli F. Seebirt and Daniel D. Schurtz, both of South Bend, for appellee.
In this action appellee filed a complaint against appellant before a justice of the peace of St. Joseph county to recover damages for an injury to his mare. Omitting the formal parts, the complaint is as follows:
“That the defendant is the keeper of a livery stable in the city of South Bend, St. Joseph county, Ind., and that on the 3d day of April, 1915, plaintiff intrusted to defendant's keeping a mare owned by the plaintiff, and that plaintiff paid the defendant for the feeding and keeping of said mare; that when plaintiff demanded of the defendant said mare defendant delivered her to plaintiff with one limb broken; that said injury rendered said mare wholly worthless; that the value of said mare was $150.”
The cause was tried before the justice of the peace, resulting in a judgment in favor of appellant. From this judgment appellee appealed to the circuit court of St. Joseph county, where appellant filed a demurrer to the complaint for want of sufficient facts. This demurrer was overruled. Appellant then filed an answer in two paragraphs, the first being a general denial, and the second alleged facts to show that the parties did not occupy the relation of bailor and bailee. On the issues thus formed a trial was had, resulting in a verdict against appellant for $75, on which judgment was rendered. Appellant filed a motion for a new trial, which was overruled, and has assigned the following errors in this court: (1) Insufficiency of the complaint to state a cause of action; (2) error of the court in overruling the demurrer to the complaint; (3) error of the court in overruling the motion for a new trial.
[1][2][3] The first assigned error presents no question for our determination. Pittsburgh, etc., R. Co. v. James (1917) 114 N. E. 833. As to the second assigned error it should be noted that this action was begun before a justice of the peace. Therefore we need only consider the sufficiency of the complaint as a pleading in that court, notwithstanding the demurrer thereto was filed in the circuit court on appeal. Wabash, etc., R. Co. v. Lash (1885) 103 Ind. 80, 2 N. E. 250. It is a well-recognized rule of pleading that, where an action is commenced before a justice of the peace, a complaint sufficient in substance to apprise the adverse party of the nature of the demand, and to bar another action for the same thing, is sufficient even as against a demurrer. Helms v. Appleton (1908) 43 Ind. App. 482, 85 N. E. 733, 86 N. E. 1023;Brown v. Thompson (1909) 45 Ind. App. 188, 90 N. E. 631;Everett v. Irwin (1910) 47 Ind. App. 263, 94 N. E. 352;Gregory v. Redd (1913) 53 Ind. App. 629, 102 N. E. 140. The complaint is sufficient under this rule, and hence there was no error in overruling the demurrer thereto.
[4][5] Appellant assigned the action of the court in overruling his demurrer to the complaint as one of his reasons for a new trial. This is not a recognized cause therefor. Decker v. Mahoney (1917) 110 N. E. 57. He also alleges in his motion for a new trial that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. These reasons are waived by a failure to state any proposition or point with reference to the same. Chesapeake, etc., R. Co. v. Jordan (1916) 114 N. E. 461;Continental Ins. Co. v. Bair (1917) 114 N. E. 763.
[6][7][8] The only remaining reasons assigned by appellant for a new trial relate to the action of the court in giving and refusing to give certain instructions. Appellee contends that the instructions are not before the court, and that no question is properly raised with reference thereto. It is well settled that to authorize a consideration of the action of the trial court with reference to instructions they must be brought into the record by a substantial compliance with one of the methods provided by statute therefor. Indiana, etc., T. Co. v. Sullivan (1912) 53 Ind. App. 239, 101 N. E. 401;Indianapolis, etc., T. Co. v. Gillaspy (1913) 56 Ind. App. 332, 105 N. E. 242;Indiana Quarries Co. v. Lavender (1917) 116 N. E. 2. In this case there is no attempt to bring the instructions into the record by a bill of exceptions. It is also well settled that, in order to make the instructions a part of the record in a civil case without a bill of exceptions, they must be filed in open court, and the record must affirmatively show that they were so filed. Thompson v. Thompson (1900) 156 Ind. 276, 59 N. E. 845;Indianapolis, etc., R. Co. v. Ragan (1908) 171 Ind. 569, 86 N. E. 966;Thieme & Wagner, etc,. Co. v. Kessler (1910) 47 Ind. App. 284, 94 N. E. 338;Stimson v. Kreuger (1917) 114 N. E. 885. The only entry shown by the transcript relating to the filing of the instructions is as follows:
“And the instructions that are given are now ordered, signed, filed, and ordered made a part of the record, and are in these words, to wit: [Here follows what purports to be certain instructions.]”
It will be noted that this entry does not recite that the instructions were filed, but only recites that they were ordered filed. It has been held that an order to file is not sufficient, and that to become a part of the record, without a bill of exceptions, it must appear from the record that the instructions were in fact filed. Indianapolis T. Co. v. Ragan, supra; Suloj v. Retlaw Mines Co. (1914) 57 Ind. App. 302, 107 N. E. 18;Roach v. Cumberland Bank (1915) 60 Ind. App. 547, 111 N. E. 320. It will be further noted that...
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