Gray v. Miller, No. 18296

Docket NºNo. 18296
Citation122 Ind.App. 531, 106 N.E.2d 709
Case DateJune 23, 1952
CourtCourt of Appeals of Indiana

Page 709

106 N.E.2d 709
122 Ind.App. 531
GRAY

v.
MILLER.
No. 18296
Appellate Court of Indiana, in Banc.
June 23, 1952.

[122 Ind.App. 532]

Page 710

George W. Andrews, Robert Foust, Marion, for appellant.

Reuben H. Berman, Roy Dempsey, Marion, Henry M. Dowling, Addison M. Dowling, Indianapolis (Dowling & Dowling, Indianapolis, of counsel), for appellee.

BOWEN, Judge.

This is an appeal from a judgment in an action brought by appellant against the appellee to set aside so much of a judgment rendered in a divorce decree between the parties which divested the appellant of any interest in a real estate contract held by the parties, or in the alternative, as the first paragraph of the complaint prayed, that such part of such judgment[122 Ind.App. 533] in default taken against appellant be set aside and that appellant be allowed to make his defense thereto. The second paragraph of complaint alleged that the court did not have jurisdiction to grant appellee all of appellant's interest in the real estate contract held by the parties for the reason that such judgment was beyond the issues presented to the court for its determination by the appellee's complaint for divorce. The prayer of the second paragraph of appellant's complaint asked that the judgment granting appellee all of appellant's interest in the real estate and appointing a commissioner for the conveyance of the same to her, be set aside, and that the appellant be declared to be a tenant in common with appellee in such real estate, and that such interest be partitioned and sold.

Issues were joined on appellee's answer to appellant's two paragraphs of complaint which denied the allegations thereof and the reply thereto.

Appellant presented his case in chief consisting of his testimony and that of his father, and at the close of his case, the court sustained appellee's motion to render finding and judgment for appellee.

Errors assigned for reversal are that the trial court erred in overruling appellant's motion for a new trial. The grounds of such motion for a new trial are that the court erred in sustaining the motion of appellee to render finding and judgment in her favor at the close of appellant's case, and that the finding of the trial court is not sustained by sufficient evidence and is contrary to law.

The appellee has made certain objections to the appellant's brief. The first objection is that the brief does not indicate the page and lines of the transcript where the various matters contained in the record and [122 Ind.App. 534] objected to are found. While Rule 2-17(e) specifically requires references to pages and lines of the transcript in connection with a concise statement of the record, the Supreme Court in interpreting this rule has said: 'The rule does not specify how frequently such references should occur. That is left to the discretion and good faith of the writer of the brief'. A failure to make sufficient references which might be attributable to lapses or inexperience of the writer of the brief will be overlooked where there is manifest good faith, and the court is able to adequately and expeditiously consider and ascertain the matters presented. Gross Income Tax Div. v. W. B. Conkey Co., 1940, 228 Ind. 343, 88 N.E.2d 563, 566.

Also, it is not fatal to the determination of an appeal that the clerk's certificate does not appear in appellant's brief. Paul v. Walkerton, etc., Cemetery Ass'n, 1932, 204 Ind. 693, 184 N.E. 537.

A careful consideration of appellant's brief in connection with all of appellee's objections convinces us that the brief discloses a good faith effort on the part of appellant's counsel to prepare the brief in conformity with the rules and requirements of this court, so that the court is able to understand the questions presented in this appeal.

The divorce complaint in the original action, which was the basis of the judgment that the appellant asks to be set aside, contained the usual allegations of residence,

Page 711

date of marriage and separation, cause of separation, and grounds for divorce, and that no children were born to said parties.

In appellee's prayer for relief in the divorce complaint, she specifically asked for a divorce, for counsel fees and costs, and all other just and proper relief. [122 Ind.App. 535] Upon the default of appellant in the divorce action, the court granted the appellee a divorce, and such judgment and decree contained the following statement: 'The court further finds that in the adjustment of property rights that plaintiff and defendant have a contract in their joint names with the First National Bank of...

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13 practice notes
  • Siebeking v. Ford, No. 18924
    • United States
    • February 20, 1958
    ...etc., Cemetery Ass'n, 1933, 204 Ind. 693, 184 N.E. 537; State v. McNulty, 1950, 228 Ind. 497, 92 N.E.2d 839; Gray v. Miller, 1952, 122 Ind.App. 531, 106 N.E.2d 709. In State v. McNulty, supra [228 Ind. 497, 92 N.E.2d 841], it was stated by Judge 'Appellees insist that appellant's brief does......
  • Stockton v. Stockton, No. 1-1181A322
    • United States
    • Indiana Court of Appeals of Indiana
    • May 27, 1982
    ...was introduced into evidence in determining property rights, although such agreement is not binding on the court. Gray v. Miller, (1952) 122 Ind.App. 531, 106 N.E.2d Robert relies primarily upon a decision of the Supreme Court of Vermont in Strope v. Strope, (1973) 131 Vt. 210, 303 A.2d 805......
  • Seward v. Seward, No. 18746
    • United States
    • Indiana Court of Appeals of Indiana
    • May 23, 1956
    ...the property rights of the parties. Wallace v. Wallace, 1953, 123 Ind.App. 454, 110 N.E.2d 514, 111 N.E.2d 90. Gray v. Miller, 1952, 122 Ind.App. 531, 106 N.E.2d 709. The appellant's motion for new trial does not set forth the questions or answers thereto together with the objections made, ......
  • White v. White, No. 1--875A146
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1975
    ...our conclusion by several cases which specifically considered the alimony statute involved. [167 Ind.App. 466] In Gray v. Miller (1952), 122 Ind.App. 531, 106 N.E.2d 709, the court 'While the foregoing statute is primarily an alimony statute, the legislative intent is apparent to adopt the ......
  • Request a trial to view additional results
13 cases
  • Siebeking v. Ford, No. 18924
    • United States
    • February 20, 1958
    ...etc., Cemetery Ass'n, 1933, 204 Ind. 693, 184 N.E. 537; State v. McNulty, 1950, 228 Ind. 497, 92 N.E.2d 839; Gray v. Miller, 1952, 122 Ind.App. 531, 106 N.E.2d 709. In State v. McNulty, supra [228 Ind. 497, 92 N.E.2d 841], it was stated by Judge 'Appellees insist that appellant's brief does......
  • Stockton v. Stockton, No. 1-1181A322
    • United States
    • Indiana Court of Appeals of Indiana
    • May 27, 1982
    ...was introduced into evidence in determining property rights, although such agreement is not binding on the court. Gray v. Miller, (1952) 122 Ind.App. 531, 106 N.E.2d Robert relies primarily upon a decision of the Supreme Court of Vermont in Strope v. Strope, (1973) 131 Vt. 210, 303 A.2d 805......
  • Seward v. Seward, No. 18746
    • United States
    • Indiana Court of Appeals of Indiana
    • May 23, 1956
    ...the property rights of the parties. Wallace v. Wallace, 1953, 123 Ind.App. 454, 110 N.E.2d 514, 111 N.E.2d 90. Gray v. Miller, 1952, 122 Ind.App. 531, 106 N.E.2d 709. The appellant's motion for new trial does not set forth the questions or answers thereto together with the objections made, ......
  • White v. White, No. 1--875A146
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1975
    ...our conclusion by several cases which specifically considered the alimony statute involved. [167 Ind.App. 466] In Gray v. Miller (1952), 122 Ind.App. 531, 106 N.E.2d 709, the court 'While the foregoing statute is primarily an alimony statute, the legislative intent is apparent to adopt the ......
  • Request a trial to view additional results

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