Miller v. Berne Hardware Co.

• Decision Date: 17 May 1917
• Docket Number: No. 9282.,9282.
• Citation: 64 Ind.App. 473,116 N.E. 54
• Parties: MILLER v. BERNE HARDWARE CO.
• Court: Indiana Appellate Court

64 Ind.App. 473

116 N.E. 54

MILLER

v.BERNE HARDWARE CO.

No. 9282.

Appellate Court of Indiana, Division No. 1.

May 17, 1917.

Appeal from Circuit Court, Adams County; David E. Smith, Judge.

Action by the Berne Hardware Company against Mathias Miller. Judgment for plaintiff, and defendant appeals. Affirmed.

Peterson & Moran, of Decatur, for appellant. F. M. Cottrell, of Berne, and Heller, Sutton & Heller, of Decatur, for appellee.

HOTTEL, J.

This is an appeal from a judgment in appellee's favor for $323 in an action brought by it to recover on a promissory note. It is not necessary to a disposition of the questions presented by the appeal to further indicate the issues upon which the case was tried. The errors relied on for reversal are: (1) The overruling of the demurrerto the complaint. (2) The complaint does not state facts sufficient to constitute a cause of action. (3) The overruling of the motion for new trial.

The only objection to the complaint suggested in this court is that (we quote from appellant's brief) it “does not comply with section No. 996, Burns 1914, which requires corporations to prosecute actions by attorneys in all cases.” This objection is not available for either of three reasons.

[1] 1. It would not have been pertinent as a ground of objection in the memorandum accompanying the demurrer to said complaint, because the statute cited does not purport or attempt to impose upon a corporation the duty of averring, in a complaint filed by it, that it prosecutes its action by attorney, and no such averment is necessary to the sufficiency of such complaint.

[2] 2. It was not, in fact, included as one of the grounds of such memorandum, and hence is in no event available on appeal. Burns 1914, § 344; City of Bloomington v. Citizens', etc., Bank, 56 Ind. App. 446, 105 N. E. 575.

3. The record discloses that appellee appeared by attorneys who prosecuted its action, and hence there was a compliance with said statute.

[3] The second error relied on presents no question. Burns 1914, § 344; Stiles v. Hasler, 56 Ind. App. 88, 104 N. E. 878.

[4] Appellee insists that the third error relied on is also unavailable, and among the several grounds upon which this contention is predicated, he urges that the motion for new trial is not in the record, because the original motion, instead of a copy thereof, is called for by appellant's precipe attached to the transcript, and because such original motion, instead of the copy, is in fact embodied in the transcript and certified to by the clerk. Numerous cases supporting this contention are cited. These cases, however, have been recently overruled by the Supreme Court. Spurlock v. State, 114 N. E. 209.

[5] It is also urged that none of the grounds of said motion are available for the reason that the evidence is not in the record, and for the further reason that appellant has failed to set out in his brief the substance of the pleadings. Our examination of the record discloses that it does not contain the evidence. The absence of the evidence precludes the consideration of any ground of said motion which challenges any ruling of the trial court, the correctness of which in any way depends on such evidence. Miller et al. v. Armstrong Co., 53 Ind. App. 501, 102 N. E. 47;Harness et al. v. State ex rel., 143 Ind. 420, 42 N. E. 813;Lake Erie, etc., v. Clark, 7 Ind. App. 155, 34 N. E. 587, 52 Am. St. Rep. 442;Hatfield v. Chenoweth, 32 Ind. App. 554, 70 N. E. 166.

The record also discloses that appellant filed an answer in six paragraphs, and a cross-complaint in two paragrphs. Appellant, in his brief, states generally, and by way of conclusion only, the nature of the fourth, fifth, and sixth paragraphs of said answer, and each paragraph of the cross-complaint. The substance of neither of these pleadings is set out in the brief. The rules of the court, as frequently construed and interpreted by the decided cases, require the appellant to so prepare his brief that the questions sought to be presented therein can be determined by the court from such briefs without resort to the record. Laatsch v. Andree, 51 Ind. App. 242, 243, 99 N. E. 451;Chicago, etc., R. Co. v. Walton, 165 Ind. 253, 74 N. E. 1090;Chicago, etc., R. Co. v. Newkirk, 48 Ind. App. 349, 350, 93 N. E. 860.

[6] This court will not search the record to reverse the judgment of the trial court. State ex rel. v. Board et al., 167 Ind. 276, 287, 288, 78 N. E. 1016;Henderson v. Country, etc., Co., 57 Ind. App. 414, 415, 107 N. E. 295;Kelley v. Grand Trunk, etc., R. Co., 46 Ind. App. 697, 93 N. E. 616.

[7] In the absence of the several pleadings, or the substance thereof, and in the absence of the evidence, this court could in no event determine the relevancy or pertinency of any instruction given or refused, or consider any ruling the correctness of which in any way depends on the issues and the evidence. McCardle v. McGinley, 86 Ind. 542, 44 Am. Rep. 343;Foultz v. State, 24 Ind. App. 141, 146, 56 N. E. 262;Barnes v. Pelham et al., 18 Ind. App. 166, 168, 169, 47 N. E. 648;Chicago, etc., Ry. Co. v. Rader, 10 Ind. App. 607, 38 N. E. 341;Lawrence v. Oliver Typewriter Co., 51 Ind. App. 434, 99 N. E. 809;Mesker v. Fitzpatrick, 48 Ind. App. 518, 520, 94 N. E. 827;Dederick et al. v. Baumgartner et al., 46 Ind. App. 403, 404, 92 N. E. 663;Parker Land, etc., Co. v. Ayres, 43 Ind. App. 513, 87 N. E. 1062;Lyons et al. v. Souder et al., 56 Ind. App. 443, 105 N. E. 511, and cases cited; Wallace v. Mattice, 118 Ind. 59, 61, 20 N. E. 497.

[8] Other reasons are suggested why those grounds of the motion for new trial, challenging the giving and refusal of instructions, are not available; but those indicated are sufficient for that purpose, as well as for the disposition of all other grounds of said motion, unless it be the eleventh ground, which is predicated upon the misconduct of one of the jurors during the trial of the cause. The misconduct...