Parsley v. Koch, No. 19042

• Docket Nº: No. 1
• Citation: 130 Ind.App. 239, 161 N.E.2d 613
• Case Date: October 15, 1959
• Court: Court of Appeals of Indiana

Page 613

161 N.E.2d 613 130 Ind.App. 239 Floyd PARSLEY, Della Parsley, Appellants,
v.
Frank J. KOCH, Mary B. Koch, Appellees. No. 19042. Appellate Court of Indiana, Division No. 1. Oct. 15, 1959.

[130 Ind.App. 240] John F. Watkins, Indianapolis, Ging & Free, Greenfield, for appellants.

John Baldwin, Indianapolis, Richard T. Lineback, Greenfield, for appellees.

COOPER, Judge.

This is an appeal by the appellants, defendants below, from a judgment of the Hancock Circuit[130 Ind.App. 241] Court. The cause of action was for specific performance and damages arising out of the failure of the appellant, Floyd Parsley, to fulfill the terms of a contract he made with the appellees to build a home in the city of Indianapolis.

The complaint was in four paragraphs and charged that the house was built 15.7 feet over and upon an adjacent lot; that it was constructed unlawfully and contrary to the zoning law; poor workmanship; failure to complete the contract on time; failure to finish and complete the contract; negligence; willful recklessness; fraud in obtaining by false and untrue statements large payments from appellees, and that appellant, Della Parsley, ratified the acts of Floyd Parsley and that she was a constructive trustee with him. The issues were closed under the rules. The trial resulted in a judgment for Seven Thousand, Five Hundred ($7,500) Dollars against the appellants and further ordered the transfer of certain real estate to the appellees.

The appellants in this appeal attempt to question the action of the trial court in overruling their separate demurrers to the complaint and question the sufficiency of the evidence.

At the outset, we are confronted with the contention of the appellees concerning the failure of the appellants to follow Rule 2-17 of the Supreme Court, which we have many times stated has the force and effect of law. Many authorities on this point can be found in Flanagan, Wiltrout and Hamilton's, Indiana Trial and Appellate Practice, and West' Indiana Law Encyclopedia.

Page 614

This court always seeks, whenever possible, to determine cases upon their merits, particularly where there [130 Ind.App. 242] is a good-faith effort made to comply with the rules. We must conclude, however, in the instant case, that the appellants' brief does not properly present any question for review.

The appellants in their brief fail wholly to show that the demurrers were duly filed or that they were overruled by the trial court, nor is it shown that any memorandum was filed with said demurrers.

In the cause now before us, the argument portion of the appellants' brief fails, in all respects, to comply with Rule 2-17(e) of the Supreme Court, which provides, in part:

'* * * there shall be concisely stated the basis of the objection to the ruling complained of, exhibiting clearly the points of fact and of law being presented, and how they are applicable, citing the...