Louisville, N.A. & C. Ry. Co. v. Grantham
| Decision Date | 31 December 1885 |
| Citation | 4 N.E. 49,104 Ind. 353 |
| Parties | Louisville, N. A. & C. Ry. Co. v. Grantham. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Clay circuit court.
Geo. W. Friedley, for appellant.
Smiley & Neff and Geo. A. Knight, for appellee.
In this case the appellee, Grantham, sued the Louisville, New Albany & Chicago Railway Company, appellant, in the Putnam circuit court, in a complaint of three paragraphs. The object of the suit was to recover damages for alleged injuries to two horses and three mares, owned by and the property of the appellee, and each of a certain specified value, which injuries to such animals, it was alleged, were caused by a locomotive engine and train of cars, owned and operated by the appellant, on the line of its railway, in Putnam county. In the first paragraph of his complaint appellee stated his cause of action under the provisions of the statute making a railway company liable for the killing or injury of animals by its locomotives or cars on its railroad tracks, unless its road is securely fenced in. In the second paragraph he alleged that his horses and mares were injured by appellant's locomotive and cars, by and through the negligence of its employes and servants in running its train, and without any fault or negligence on his part. In the third paragraph of his complaint he charged that his horses and mares were willfully injured by the employes and servants of the appellant, who had at the time the control and management of its locomotive and train of cars. Appellant answered by a general denial of the complaint, and of each paragraph thereof; and, the cause being at issue, on its application the venue thereof was changed to the court below. There the issues joined were tried by a jury, and a verdict was returned for the appellee, assessing his damages at $500. Over appellant's motions for a new trial, and in arrest, the court rendered judgment on the verdict.
In this court appellant has assigned a number of errors; but of these only one is noticed even by its learned counsel in his brief of this cause, namely, the overruling of its motion for a new trial. Of course, under the settled practice of this court, the other errors assigned by appellant, but not discussed by its counsel, are regarded here as waived, and are not considered. Goldsberry v. State, 69 Ind. 430;Williams v. Potter, 72 Ind. 354;Coffin v. Trustees, etc., 92 Ind. 337.
At the time the appellant perfected its appeal in this cause, by filing the record thereof in the office of the clerk of this court, it filed therewith what is called its “ supersedeas brief,” for the purpose of obtaining a supersedeas from the court or one of the judges thereof. This brief was filed by appellant in compliance with the last clause of rule 16 of the rules of this court, as adopted May 14, 1884, which reads as follows: “An application for a supersedeas must be accompanied by a brief, referring to the record by pages and lines, and pointing out the error or errors upon which the appellant relies.” Such a brief is widely different from the brief which our decisions have uniformly required of the appellant on the final hearing of the appeal. Thus in Parker v. Hastings, 12 Ind. 654, the court said:
“In America, at least in Indiana, a brief, in addition to an abbreviated statement of the case, should contain a summary of the points or questions involved, with a citation of authorities, if authorities are relied on, and an argument based upon both, which should be characterized by perspicuity and conciseness, though, says Bouvier, when the argument is pertinent and weighty, it cannot be too extended.”
For the want of, approximately, at least, such a brief as is here defined many appeals have been dismissed by this court, or the judgments appealed from have been affirmed. Bennett v. State, 22 Ind. 147;Deford v. Urbain, 42 Ind. 476;Gardner v. Stover, 43 Ind. 356;Harrison v. Hedges, 60 Ind. 266;Bray v. Franklin Life Ins. Co., 68 Ind. 6;Millikan v. State, 70 Ind. 283;Wilson v. Holloway, Id. 407; City of Anderson v. Neal, 88 Ind. 317;McCann v. Rodifer, 90 Ind. 602;Kaster v. Kaster, 93 Ind. 581;Arbuckle v. Biederman, 94 Ind. 168;Pratt v. Allen, 95 Ind. 404;Robbins v. Magee, 96 Ind. 174.
Usually, where a supersedeas brief is filed, the appellant afterwards files a further or additional brief, wherein he states the points or questions presented by the alleged errors of which he complains, cites the authorities, if any, upon which he relies, and makes his argument. But this has not been done by the appellant in the case in hand. But, in appellant's supersedeas brief, itscounsel has not only pointed out “the error or errors upon which appellant relies,” as required by rule 16 of the rules of this court, but he has also discussed therein the questions arising under such error so fully and ably that appellant is entitled to have such questions, in so far as they are properly saved in and presented by the record, considered and decided. We have said that the only error noticed by appellant's counsel in his brief of this cause was the overruling of the motion for a new trial. Under this error it is earnestly insisted on behalf of appellant that the verdict of the jury was not sustained by sufficient evidence. It is claimed, however, by appellee's counsel that, under our decisions, the question of the sufficiency of the evidence to sustain the verdict cannot be considered here, because the bill of exceptions shows on its face that all the evidence given in the cause is not in the...
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