Johnson v. Citizens' State Bank
| Decision Date | 11 December 1914 |
| Docket Number | No. 9035.,9035. |
| Citation | 107 N.E. 35,57 Ind.App. 348 |
| Parties | JOHNSON v. CITIZENS' STATE BANK et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Huntington County; W. H. Hamer, Special Judge.
Action by Albert G. Johnson against the Citizens' State Bank and another. From a judgment denying relief, plaintiff appeals. Dismissed.T. G. Smith and B. M. Cobb, both of Huntington, for appellant. C. W. Watkins and W. A. Branyan, both of Huntington, for appellees.
The appellees have moved to dismiss this appeal on the ground that there is no assignment of error which presents any question for the decision of the court.
[1][2] The first assignment alleges error in:
“The ruling of the court in favor of appellees on their demurrer filed against the appellant's complaint and holding appellant was not entitled to the relief therein claimed.”
The record shows that a demurrer to appellant's complaint was overruled, and that after obtaining said ruling in his favor he filed an amended complaint, to which a demurrer was addressed for insufficiency of the facts alleged to state a cause of action. This demurrer was sustained, and the plaintiff, failing and refusing to plead further, elected to stand on his amended complaint. Judgment was rendered that he take nothing by such complaint and against him for costs. He prayed an appeal and assigned error as above shown.
The fact that the first ruling on the demurrer was in his favor and that notwithstanding such ruling he filed an amended complaint would indicate that he concluded he could not obtain the relief he desired on such complaint, or, at least, that for some reason he was not satisfied to go to trial on his original complaint.
The form of the assignment of error is peculiar, in that it does not refer to either the sustaining or overruling of the demurrers, but to the ruling of the court in favor of appellees on their demurrer to the “complaint and holding appellant was not entitled to the relief therein claimed.”
The latter part of the specification of error indicates that appellant in making the assignment sought to present some question other than the ruling against him on the demurrer to the amended complaint. The record contains both the original and amended complaints and the demurrers and rulings thereon. While the effect of filing an amended complaint is to take the original out of the case, yet, considering the form of the assignment and all the facts disclosed by the record, this court is uncertain as to whether appellant sought to present error on the ruling of the court in sustaining the demurrer to his amended complaint, or some failure to grant him all the relief he sought to obtain on his original complaint.
In any view we are able to take of the assignment it is so indefinite and uncertain that it does not comply with the statute and rules of the court which require each specification of error to definitely point out with certainty a single alleged error of the lower court, shown by the record, which entitles him to the judgment of this court thereon.
Among the cases showing the insufficiency of the first specification of error we cite the following: Bowman v. Cook, 49 Ind. App. 509, 97 N. E. 553;Weaver v. Apple, 147 Ind. 304, 46 N. E. 642;Scott v. Lafayette, 42 Ind. App. 614, 616, 86 N. E. 495;Town, etc., v. Dobb, 152 Ind. 157, 52 N. E. 759;Spitzer v. Miller, 35 Ind. App. 116, 73 N. E. 833;Spitzer v. Wright, 36 Ind. App. 558, 76 N. E. 261;Hayes v. Locus, 37 Ind. App. 104, 76 N. E. 649;Johnston Glass Co. v. Lucas, 34 Ind. App. 418, 419, 72 N. E. 1102;Wood Reaping Mach. Co. v. Angemeier, 51 Ind. App. 258, 99 N. E. 500;Shriver v. Montgomery, 103 N. E. 945, 947; Ewbank's Manual of Practice, §§ 127, 235; Elliott's Appellate Proc. §§ 299-300, 308-309.
[3] The second assignment of error, that the court erred in overruling appellant's motion for a new trial on its face, would present a question if the motion for a new trial contained any cause for a new trial recognized by our statute.
[4] The grounds relied upon for a new trial are: (1) Error in sustaining the demurrer to the complaint; (2) error in rendering judgment in favor of the defendants; and (3) error in rendering judgment against the plaintiffs.
None of the specifications of the motion state a cause for a new trial. Section 585, Burns 1908; Over v. Dehne, 38 Ind. App. 427, 431, 75 N. E. 664, 76 N. E. 883;State ex rel. v. Davisson, 174 Ind. 705, 706, 93 N. E. 6;Bradbord v. Wegg, 102 N. E. 845. We may add, however, that on the facts shown by this record there was, and could be, no ground for a new trial, and the only available error, if any, was the ruling on the demurrer to the amended complaint.
[5][6] The third and last specification of error is “that the court erred in taxing the costs of the suit against appellant.” This assignment seeks to raise the question of the taxation of costs for the first time in this court. The question of taxation of costs is properly raised by motion to retax presented to the trial court. If the motion is overruled, it should then be assigned that the court erred in overruling the motion to retax the costs. Section 663, Burns 1914; Chase v. Artic Ditchers, 43 Ind. 74, 77;Standard Oil Co. v. Bowker, 141 Ind. 12, 13, 40 N. E. 128.
[7] Where the assignment of errors is so defective and indefinite as not to present any question relating to the merits of the appeal, should the appeal be...
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