Heckman v. Howard

• Decision Date: 22 October 1941
• Docket Number: No. 16826.,16826.
• Citation: 36 N.E.2d 957,109 Ind.App. 548
• Parties: HECKMAN v. HOWARD et al.
• Court: Indiana Appellate Court

109 Ind.App. 548

36 N.E.2d 957

HECKMAN

v.HOWARD et al.

No. 16826.

Appellate Court of Indiana, in Banc.

October 22, 1941.

Appeal from Boone Circuit Court; Ernest R. Stewart, Judge.

Action by Grace M. Heckman against Samuel G. Howard and others to set aside a deed and for an accounting, wherein defendant filed a cross-complaint. From an adverse judgment, plaintiff appeals.

Affirmed.George A. Hofmann, of Indianapolis, for appellant.

Albert E. Schmollinger, of Indianapolis, and Thomas O. Beck, of Lebanon, for appellees.

BLESSING, Chief Judge.

The appellant (plaintiff below) instituted this action against the appellees (defendants below) to set aside a deed and for an accounting. The appellees answered appellant's complaint by a general denial and filed two paragraphs of cross-complaint, one to quiet title and the other paragraph in ejection, to which paragraphs the appellant filed answer in general denial. The cause was tried to the court without a jury, and judgment was rendered against the appellant on the complaint and in favor of the appellees upon the cross-complaint. Within due time the appellant filed her motion for new trial. The overruling of this motion for new trial constitutes the only error assigned to this court, and the specifications therein are;

1. The decision of the court is not sustained by sufficient evidence.

2. The decision of the court is contrary to law.

3. The decision of the court is contrary to law, and evidence.

The appellees in their motion to dismiss this appeal challenge the sufficiency of appellant's brief to present any question for review in that there is a failure to comply with the rules of this court for the briefing of causes pending on appeal. The attention of the court is called to many claimed defects in the brief of the appellant but only two of them need consideration.

[1] Appellant's brief fails to show that any time was given by the trial court in which to file a bill of exceptions containing the evidence and the rulings of the trial court, or that any bill of exceptions was ever filed or made a part of the record. The only questions the appellant could present under the assignment of error pertain to the evidence, which, without a bill of exceptions, cannot be considered. In such a state of the record no question is presented to this court for consideration. Clemens v. Stoner, Executor, 1920, 73 Ind. App. 370, 126 N.E. 487;Skora v. Skora, 1930, 91 Ind.App. 287, 169 N.E. 532;Stirn v. Vohland, 1936, 102 Ind.App. 216, 1 N.E. 2d 654;Union Insurance Company of Indiana v. Rufus Glover, 1941, Ind.App., 34 N.E.2d 934.

[2] Appellant's brief sets out certain parts of the record following which the evidence is set out in question and answer form. The next and...