Hutchison v. Adomatis

• Decision Date: 29 March 1955
• Docket Number: No. 18493,18493
• Citation: 125 Ind.App. 550,125 N.E.2d 251
• Parties: George W. HUTCHISON, Susle L. Hutchison, Appellants, v. Alex ADOMATIS, doing business under the firm name and style of Bullders Loan Company, Appellee.
• Court: Indiana Appellate Court

Page 251

125 N.E.2d 251

125 Ind.App. 550

George W. HUTCHISON, Susle L. Hutchison, Appellants,

v.

Alex ADOMATIS, doing business under the firm name and style

of Bullders Loan Company, Appellee.

No. 18493.

Appellate Court of Indiana, In Banc.

March 29, 1955.

Rehearing Denied May 9, 1955.

Lawrence W. Ruch, Wesley T. Wilson, Indianapolis, for appellants.

Compton, Parsons & Duvall, Indianapolis, Carl Lee Compton, Indianapolis, of counsel, for appellee.

KELLEY, Chief Judge.

Action on promissory note by appellee against appellants, and to foreclose mortgage securing the note. The issues were finally closed by appellants' amended answer of admission and denial, and plea of set-off, to which latter plea the appellee appropriately replied.

The cause was tried by the court which found for appellee on his complaint and that there was due him from appellants the sum of $2,075.58. Judgment was rendered against appellants in the amount of $3,145.58, which included the principal, interest and attorney fees, and the mortgage was ordered foreclosed. From the overruling of their motion for a new trial, appellants bring this appeal.

Appellants allege six independent assignments of error, the first and fourth of which are waived by failure to discuss them. The sixth assignment charges error in the overruling of the new trial motion. We will consider assignments two, three, five, and six in numerical order. The determination of assignments two and three require reference to certain pleadings and motions filed in the cause.

Appellants filed a cross-complaint against appellee and certain cross-defendants named therein, and also filed petition to make such cross-defendants additional parties to the action. Thereafter, appellee filed a motion which, among other things, sought to strike said cross-complaint from the records. Prior to the ruling of the court on this motion, appellants, on April 5, 1952, filed an amended cross-complaint and an amended petiton to make additional parties cross-defendants. Thereafter, the court sustained appellee's said motion to strike said cross-complaint, and it is this action of the court which appellants assign as error by their independent assignment 2.

There was no available error of the court in making said ruling. The filing by appellants of said amended petition and amended cross-complaint took out of the record for all purposes said original petition and cross-complaint to which appellee's said motion was addressed, and waived any error which may have been committed in rulings thereon. State ex rel. Gowen v. Jackson, 1895, 142 Ind. 259, 41 N.E. 534; Williams v. Williams, Adm'r, 1940, 217 Ind. 581, 588, 29 N.E.2d 557; Inter State Motor Freight System v. Henry, 1942, 111 Ind.App. 179, 186, 38 N.E.2d 909.

The court granted appellants' said amended petition to make additional parties as cross-defendants to said amended cross-complaint and summons were issued thereon for said cross-defendants. One of said cross-defendants, Moore's Plumbing & Heating Supplies, Inc., appeared and filed a motion to strike said amended cross-complaint from the files, which said motion was overruled by the court. Thereafter, said cross-defendant filed its petition seeking a reconsideration by the court of its previous ruling on said motion to strike said amended cross-complaint. The court, after hearing oral arguments, sustained the petition of said Moore's Plumbing & Heating Supplies, Inc., for reconsideration of the court's ruling on the motion of said cross-defendant to strike said amended cross-complaint.

The sustaining by the court of said petition to reconsider its previous ruling gives rise to appellants' assignment of error 3, which is in these words:

'3. The trial court erred in sustaining the petition of Moore's Plumbing and Heating Supplies, Inc., for reconsideration of the court's ruling on said corporation's motion to strike appellants' amended cross-complaint from the files, in setting aside its order of April 5, 1952, making additional parties cross-defendant, and in overruling appellants' petition of April 5, 1952, to make additional parties cross-defendant.'

It is at once perceived that said assignment charges three errors by the court, viz.: (1) Sustaining said cross-defendant's petition to reconsider the court's ruling on said previous motion to strike the amended cross-complaint; (2) setting aside its order of April 5, 1952, making additional parties cross-defendant; and (3) overruling appellants' petition of April 5, 1952, to make additional parties cross-defendant.

It is, of course, the established rule that each specification of the assignment of errors 'shall be complete and separately numbered', Rule 2-6, Supreme Court Rules, and that each specification should be addressed to but a single error. Flanagan Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 2407, Comment 5, page 179. If one specification of error covers separate rulings, and one of the rulings is correct, error cannot be predicated on the other rulings. Flanagan, Wiltrout and Hamilton, ibid.

Looking to the first error claimed in the assignment, the only alleged erroneous action taken by the court was that it sustained the petition to reconsider its previous ruling. Appellants' argument is devoted only to said first claimed error on the assumption that the court did, in fact, strike said amended cross-complaint, for they say 'the striking out of said amended cross-complaint deprived appellants of the defense of set-off.' But the assignment does not predicate error upon the striking by the court of said amended cross-complaint. Whether the court did actually strike or order stricken said cross-complaint is not alleged. We are left to conjecture or to search the record to find out what action, if any, the court took relative to striking the cross-complaint. It appears appropos at this juncture to quote from the statement of Crumpacker, P. J., in Duffy v. Hayden, 1943, 114 Ind.App. 125, 127, 50 N.E.2d 666, 667:

'* * * each specification of error must be so specific and certain as to clearly indicate the particular ruling on which it is based * * *,' and '* * * in considering the sufficiency of such assignment of error all ambiguities and uncertainties must be construed against the pleading. The court cannot indulge presumptions and thereby supply what the appellants may have intended by their pleading.' (Emphasis supplied.)

Appellants discuss in their argument a ruling not mentioned in the assignment, and waive the assigned error by failing to discuss it in their argument. They have not shown that the asserted erroneous ruling of the court was not correct, and they make no mention or reference to the other two errors specified in the assignment. It follows that said assignment of error 3 fails.

In the course of the proceedings prior to the trial of the cause, appellants filed their verified application for a change of venue from the county which the court overruled. By their assignment of error 5, appellants allege that the court erred in denying their said motion for change of venue. They have not made such ruling a ground of error in their motion for...