Lautman v. Pepin

• Decision Date: 27 March 1901
• Docket Number: 3,387
• Citation: 59 N.E. 1073,26 Ind.App. 427
• Parties: LAUTMAN v. PEPIN
• Court: Indiana Appellate Court

59 N.E. 1073

26 Ind.App. 427

LAUTMAN v. PEPIN

No. 3,387

Court of Appeals of Indiana

March 27, 1901

From the Lake Circuit Court.

Affirmed.

B. F Ibach and J. G. Ibach, for appellant.

W. C McMahan and J. C. Trainor, for appellee.

OPINION

ROBINSON, J.

Appellee recovered a judgment against appellant for malicious prosecution.

The assignments of error are: "(1) The court erred in overruling the motion for a new trial; (2) the first paragraph of complaint does not state facts sufficient to constitute a cause of action; (3) the second paragraph of complaint does not state facts sufficient to constitute a cause of action; (4) the third paragraph of complaint does not state facts sufficient to constitute a cause of action; (5) the fourth paragraph of complaint does not state facts sufficient to constitute a cause of action; (6) the court erred in sustaining a demurrer to the second paragraph of answer to the complaint; (7) the court erred in overruling the defendant's separate and several demurrers to plaintiff's first, second, third, and fourth paragraphs of complaint; (8) the court erred in overruling defendant's motion to make the complaint more specific." Appellant's counsel in their brief have upon some questions simply made objections to certain proceedings, without any argument or the assignment of any specific reasons in support of the objections made. Questions thus presented are waived.

The proceedings had in the criminal prosecution were properly admitted in evidence. An objection which amounts only to the order of proof is not available.

Appellee had been prosecuted for having sold mortgaged property. There was no error in permitting him to testify that at the time he made the sale he told the purchaser the property was mortgaged.

An objection to evidence that "it is not material" presents nothing for review. State, ex rel. v. Hughes, 19 Ind.App. 266, 49 N.E. 393; Miller v. Dill, 149 Ind. 326, 49 N.E. 272; Western Assurance Co. v. McAlpin, 23 Ind.App. 220, 55 N.E. 119.

In the fourteenth reason for a new trial two causes were assigned, each having reference to a separate and distinct item of evidence. No exception was taken to the ruling of the court on the second cause assigned. An objection was made, but no exception taken. The assignment is joint, and as to one no question is presented.

Where a transcript of certain court proceedings is offered in evidence and excluded, in order to present for review the action of the trial court in excluding the evidence, the offered evidence must be brought up by a bill of exceptions. Bensch v. Farnsworth, 9 Ind.App. 547, 34 N.E. 751.

Counsel discuss certain instructions given and the refusal to give certain instructions offered. The nineteenth reason for a new trial is that "the court erred in giving instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 16, 17, 18, 19, 20, 21, 22, and 23 on its own motion." The twenty-first reason is: "The court erred in refusing to give instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 asked by the defendant." This is a joint motion as to all the instructions given and as to all tendered and refused. It is not claimed that all those given are erroneous, and some of them are clearly right. The substance of...