Petrie v. Ludwig

• Decision Date: 25 February 1908
• Docket Number: No. 6,128.,6,128.
• Parties: PETRIE et al. v. LUDWIG.
• Court: Indiana Appellate Court

41 Ind.App. 310

83 N.E. 770

PETRIE et al.

v.LUDWIG.

No. 6,128.

Appellate Court of Indiana, Division No. 1.

Feb. 25, 1908.

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by John Ludwig against Margaret Petrie and another. Judgment for plaintiff, and defendants appeal. Affirmed.

F. H. Bowers and Milo Feightner, for appellants. Lesh & Lesh, for appellee.

HADLEY, P. J.

This is the second appeal in this cause (see Ludwig v. Petrie, 32 Ind. App. 550, 70 N. E. 280), and is an action brought by appellee against appellants. The complaint is in two paragraphs. The first is predicated on a warranty deed made by appellants to appellee, whereby it is contended appellants warranted the tract conveyed to contain 35.70 acres, when in truth it only contained 29 acres, and that appellee had been evicted from 6 acres of the tract he supposed he was getting under the deed. The second paragraph is based upon fraudulent representations on the part of the appellants in pointing out to appellee the boundary lines of his land, when in fact the lines pointed out were not the boundaries, and, by reason thereof, he had been evicted from 6 acres of the land he supposed he was receiving under the deed, to his damage. A demurrer was filed to each paragraph of the complaint, which was overruled. Answer in general denial, trial and verdict for appellee, assessing his damage at $400. Motion for new trial overruled. The assignment of errors contains the following specifications: First. The first paragraph of the complaint does not contain facts sufficient to constitute a cause of action. Second. The second paragraph of the complaint does not contain facts sufficient to constitute a cause of action. Third, Fourth. A separate assignment of each of appellants to the same effect as the first and second. Fifth. The court erred in overruling appellants' motion for a new trial.

The sufficiency of each paragraph of the complaint is sought to be called in question separately by the assignment of errors. It does not question the rulings of the court on the demurrers, but assigns the errors as arising the first time in this court, and attacks each paragraph of the complaint separately. Under the decision of this court and the Supreme Court such assignments present no question for consideration. Chicago & Southeastern Ry. v. Dailey, 18 Ind. App. 308, 47 N. E. 1078;Trammel v. Chipman, 74 Ind. 474;Louisville, etc., R. Co. v. Norman, 17 Ind. App. 355, 46 N. E. 702;Farmers', etc., Ins. Co. v. Yetter, 30 Ind. App. 187, 65 N. E. 762;Board of Com'rs v. Tichenor, 129 Ind. 562, 29 N. E. 32. In the case of Trammel v. Chipman, supra, the court say: “Though errorbe assigned separately upon each of several paragraphs of complaint, it cannot be determined upon any single assignment that the judgment ought to be reversed; and, though an examination, if made, might lead to the conclusion that each paragraph of the pleading was fatally defective, the judgment must still be affirmed, because there is no single assignment which presents the whole question. A number of defective assignments cannot be combined to constitute a good one, any more than several insufficient paragraphs of a complaint can be deemed to make a good complaint. The assignment of errors is, in effect, the appellant's complaint in this court, and, like the paragraphs of a complaint, each separate specification must in itself state a sufficient cause for reversing the judgment.”

Appellants also seek to question certain instructions given and certain refused. Appellee earnestly insists that the instructions are not in the record. It is apparent that these instructions were sought to be brought into the record under section 1 of the act of 1903, concerning appellate procedure. Acts 1903, p. 338, c. 193. Under this section, it is provided that the court shall indicate, before instructing the jury, by a memorandum in writing at the close of the instructions so requested, the parts of those given and of those refused, and such memorandum shall be signed by the judge. It is then provided that such instructions shall be filed with the clerk of the court at the close of the instructions to the jury. It is then provided that exceptions to the giving or refusing of instructions may be taken at any time during the term, either orally and entered upon the record or minutes of the court, or in writing at the close of the instructions given or refused. In the latter case the party excepting shall, at the close of such instructions, enter a memorandum which shall be dated and signed, stating such exceptions. The instructions and exceptions when thus prepared and filed become a part of the record without a bill of exceptions. The record in this case shows that the jury was instructed by the court on November 13, 1905, and it appears that the court gave certain instructions on its own motion. Appellants and appellee tendered certain instructions, a part of which was given and a part refused. At the close of each set of instructions there is a memorandum showing what instructions in said set were given and...