Hoover v. Weesner
| Citation | 45 N.E. 650,147 Ind. 510 |
| Decision Date | 22 December 1896 |
| Docket Number | 17,983 |
| Parties | Hoover v. Weesner |
| Court | Supreme Court of Indiana |
Rehearing Denied, April 23, 1897, Reported at: 147 Ind. 510 at 514.
From the Wabash Circuit Court.
Affirmed.
Warren G. Sayre and James D. Conner, Jr., for appellant.
A. H Plummer and H. C. Pettit, for appellee.
The appellee sued the appellant in a complaint of three paragraphs to recover damages for trespass to real estate in the first paragraph, and to quiet the appellee's alleged title to said real estate in each of the second and third paragraphs.
The first trial resulted in a verdict and judgment for the defendant. A new trial was granted as of right under the statute, and thereupon the complaint was amended so as to make it consist of the three paragraphs as above indicated. The complaint and issues as they stood on the first trial are not embraced in the transcript.
The issues made upon the complaint, as above indicated, were tried, resulting in a verdict and judgment for the plaintiff appellee, over defendant's, appellant's, motion for a new trial. The appellant has assigned for error the action of the circuit court: (1) in overruling appellant's motion for a new trial; (2) in overruling appellant's motion to require appellee to make his abstract of title more specific; (3) in overruling appellant's motion to tax costs of first trial to appellee; (4) in overruling appellant's demurrer to each paragraph of the complaint; and (5) in overruling appellant's motion for a new trial as of right.
Of the third and fifth assignments of error appellant's counsel in their brief say: "We respectfully ask the court to pass on the third and fifth assignments of error without argument as we have nothing to offer except the statutes." No statute is referred to or pointed out. Such a brief amounts to an express waiver of the error, if any there was in the rulings assigned for error, according to the established rules of practice in this court.
One of the grounds of the motion for a new trial is that the evidence is not sufficient to support the verdict. There are two reasons why we cannot pass on the sufficiency of the evidence to support the verdict: First, the bill of exceptions shows that the evidence is not all in the record. It is true that the bill concludes in the formal way that "this is all the evidence given in the cause." But it has frequently been decided by this court that such a statement cannot avail where the bill shows on its face that it does not contain all the evidence as is the case here. Weaver v. Kennedy, 142 Ind. 440, 41 N.E. 810, and cases there cited.
That has been so often decided by this court, as precluding a consideration of the sufficiency of the evidence, that a citation of the cases would needlessly encumber this opinion. And, second, the record fails to show that the bill of exceptions was ever filed, either in open court or in the clerk's office. It has often been held by this court that the record must affirmatively show such filing. Marley v. Noblett, 42 Ind. 85; Bargis v. Farrar, 45 Ind. 41; Board v. Eperson, 50 Ind. 275; Kirby v. Bowland, 69 Ind. 290; Guirl v. Gillett, 124 Ind. 501, 24 N.E. 1036; Loy v. Loy, 90 Ind. 404; Shulse v. McWilliams, 104 Ind. 512, 3 N.E. 243; Robinson v. Dickey, 143 Ind. 214, 42 N.E. 638; Miller v. Evansville, etc., R. R. Co., 143 Ind. 570, 41 N.E. 801; Pittsburg, etc., R. W. Co. v. O'Brien, 142 Ind. 218, 41 N.E. 528; Armstrong v. Dunn, 143 Ind. 433, 41 N.E. 540.
Another ground of the motion for a new trial was the giving of a series of instructions. We would be fully justified in refusing to consider these instructions because the evidence is not in the record. But the statement of these two grounds in the motion for a new trial, is as follows: "5, The court erred in giving instructions Nos. 2, 3, 6, 8, 10, 13, 14, 17, 18, 19, 28, and 34, on its own motion; 6, The court erred in giving instructions Nos. 21, 22, 23, 24, 29, 30, 31, 32, and 33 asked by the plaintiff."
It is not claimed by the appellant's learned counsel that all of these instructions, or all of either series are erroneous.
We do not find that all of either series are erroneous. It has often been decided by this court that under such a specification in a motion for a new trial all of one series of instructions so joined in the motion must be erroneous or the error assigned thereon is unavailable. Lawrence v. Van Buskirk, 140 Ind. 481, 40 N.E. 54; Bement v. May, 135 Ind. 664, 34 N.E. 327; Cincinnati, etc., R. R. Co. v. Madden, 134 Ind. 462, 34 N.E. 227; Pennsylvania Co. v. Sears, 136 Ind. 460, 34 N.E. 15; Cargar v. Fee, 140 Ind. 572, 39 N.E. 93; Indiana, etc., R. R. Co. v. Snyder, 140 Ind. 647, 39 N.E. 912.
The second assignment of error does not present the question as to whether the...
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