Gwinn v. Hobbs
| Decision Date | 19 December 1917 |
| Docket Number | No. 9474.,9474. |
| Parties | GWINN et al. v. HOBBS et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.
Action to quiet title by Anna Hobbs and others against James M. Gwinn and others. Judgment for plaintiffs, and defendants appeal. Reversed, with directions.Christian & Christian and Joseph. A. Roberts, all of Noblesville, Ayres & Ayres, of Indianapolis, Sheridan & Gruber, of Frankfort, and Korbly & New, of Indianapolis, for appellants. Kent & Ryan, of Frankfort, and Gentry & Campbell, and Shirts & Fertig, all of Noblesville, for appellees.
This is an action brought by appellee against appellants to quiet their title to an undivided three-fourths part of certain real estate. The record discloses that this cause was put at issue by an answer in general denial and a trial had, resulting in a judgment in favor of appellees; that thereafter appellants obtained a new trial as a matter of right; that subsequent to the granting of such new trial appellants filed an affirmative paragraph of answer, which was afterwards, on motion of appellees, stricken out by order of court; that appellants subsequently by leave of court withdrew their answer in general denial, and asked leave to file an affirmative answer, which they duly tendered; that the court refused such leave and rejected such tender; that appellants thereupon filed their answer in general denial, and appellant James M. Gwinn also tendered and asked leave to file a cross-complaint against appellees, by which he sought to have the court decree that he was the owner of the real estate described in the complaint; that appelleesobjected to the filing of such cross- complaint, which objection was sustained by the court. The cause was subsequently tried on the issue thus formed, resulting in a judgment in favor of appellees quieting their title to the real estate described in the complaint. Appellants filed their motion for a new trial, which was overruled, and now prosecutes this appeal.
[1] Appellees seek to avoid a consideration of this appeal on its merits because of certain alleged infirmities in the record and in appellants' brief. They insist that the record does not present any question for our consideration, for the reason that the complaint on which the case was tried is not properly certified to this court, as it only appears in the record as a transcript of a transcript. An examination of the record discloses that this action was begun in the Hamilton circuit court, and was afterwards transferred to the Clinton circuit court on a change of venue, where the parties appeared, trial was had, after an attempt to make further issues, and the judgment rendered from which this appeal is prosecuted. On the first page of the transcript, following the introductory caption, and title of the cause, is the following recital:
“Be it remembered, that heretofore on the 7th day of November, 1913, a transcript was filed in the above-entitled cause in the circuit court of Clinton county, state of Indiana, on change of venue from the circuit court of Hamilton county, state of Indiana, which transcript reads in the words and figures following, to wit: [Then follows a copy of a complaint to quiet title, bearing the same title and a caption, indicating that it had been a part of the files of the Hamilton circuit court.]”
The precipe filed by appellants for a transcript for use on appeal, after entitling the cause, calls for “a full, true, and complete transcript of the entire record in the above-entitled cause, including all records, motions, entries, papers, pleadings, orders, rulings,” etc. The certificate of the clerk then follows, and certifies:
“That the above and foregoing transcript contains full, true, and correct copies of the originals of all papers and the order book entries, *** required by the above and foregoing precipe.”
Under the conditions of the record as stated, the decisions are adverse to appellees' contention. In the case of Chicago, etc., R. Co. v. Reyman (1906) 166 Ind. 278, 76 N. E. 970, and Indianapolis, etc., Co. v. Andis (1904) 33 Ind. App. 625, 72 N. E. 145, where similar questions were presented, the complaints did not appear in the transcript on appeal as copies of the originals, but appeared in such transcripts only in the copies of the transcripts from the courts from which changes of venue had been taken. The certificates to these transcripts on appeal were, in effect, the same as in the instant case, and the courts held that such transcripts sufficiently showed that the records contained a copy of the complaints on which such causes were tried. We therefore conclude that we are warranted in treating the complaint copied in the transcript as the one on which the case was tried, and especially since there is no contention that it is not in fact such complaint. The conclusion we have reached finds support in the case of Bright National Bank v. Hartman (1915) 61 Ind. App. 440, 109 N. E. 846.
[2] It is claimed by appellees that appellants' assignment of errors is not shown in such brief. In this regard it is only necessary that an appellant's brief shall contain a short and clear statement disclosing “the errors relied upon for a reversal.” In this case appellants have stated seven such errors. This is sufficient without copying the assignment of errors into the brief bodily, but appellants will be confined to the errors thus stated. Judy v. Woods (1912) 51 Ind. App. 325, 99 N. E. 792. However, in this case such statement contains all the errors assigned, as disclosed by the record.
[3] It is further claimed that appellants' brief does not contain “a condensed recital of the evidence in narrative form, so as to present the substance clearly and concisely,” as required by the rules, and therefore this court cannot determine any question which requires a consideration of the evidence. The recital of the evidence, as contained in appellants' brief, might be improved, as could be said in many instances, but this does not require its rejection, where there appears to have been a good-faith effort to conform to the practice specified. Hall v. Terre Haute, etc., Co. (1905) 38 Ind. App. 43, 76 N. E. 334. We consider such recital sufficient to enable the court to intelligently consider the questions determined herein, and especially when considered in connection with the recital of facts set out in appellees' brief. Inland Steel Co. v. Harris (1911) 49 Ind. App. 157, 95 N. E. 271. True, appellees expressly disavow any intention of supplying any omission in appellants' brief by such recital, but its effect cannot be thus limited. Parker v. Boyle (1912) 178 Ind. 560, 99 N. E. 986.
[4] It is also claimed that appellant's brief does not contain “under a separate heading of each error relied on separately numbered propositions or points,” as required by the rules. Appellants' brief, as amended, now shows by a proper heading that the propositions or points stated in their brief, numbered from 1 to 7, inclusive, bear on the alleged errors of the court in striking out and refusing to permit the filing of an affirmative answer and a cross-complaint, and by a like heading shows that such propositions or points, numbered from 8 to 77, inclusive, bear on the alleged error of the court in overruling their motion for a new trial. There are no subheadings to indicate to what specific errors the numerous propositions or points apply, but this omission is cured in many instances by information supplied in the propositions or points themselves, as by giving the numbers of the instructions to which they are intended to be applied. To the extent that such omission is so far cured, as to enable the court to understand to what alleged errors such propositions or points apply, they will be considered.
[5] Appellees make the further contention that appellants present nothing in their brief for our consideration on the questions involving the admission of evidence, as such brief does not properly show what objections, if any, were made to the admission of such evidence, or that any exceptions were taken to the rulings of the court thereupon. An examination of appellants' brief discloses that the only place any such objections are shown is in the argument, and the only way any such exceptions are shown is by inserts following certain questions set out in what purports to be a verbatim copy of the motion for a new trial, but which the record discloses is no part of the same. Such attempt to show such facts does not follow the evident intent of rule 22 (55 N. E. v.), governing the preparation of appellants' brief, and should not be approved. Such facts should be contained in the “concise statement of so much of the record as fully presents every error and exception relied on,” as provided in the fifth clause of such rule, and should precede the “propositions or points” referred to in the latter part thereof, and the argument mentioned in rule 24. It follows that no question with reference to the admission of the evidence is properly presented for our determination.
Appellees have urged other minor objections to appellants' brief, none of which appear to us to be substantial in view of the repeated decisions of this and the Supreme Court, that where a good-faith effort to comply with the rules, relating to the preparation of briefs, is shown, the questions so presented, as far as they can be ascertained, will be considered. Town of New Carlisle v. Tullar (1916) 61 Ind. App. 230, 110 N. E. 1001;Ziegler v. Knotts (1917) 115 N. E. 343;Underhill v. State (1916) 114 N. E. 88;Repp v. Indianapolis, etc., Co. (1916) 184 Ind. 671, 111 N. E. 614.
[6] It is further contended by appellees that no valid exceptions were taken to the instructions prior to the ruling on the motion for a new trial, and that, therefore, the correctness of the rulings on such instructions is not...
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