Reeves & Co. v. Gillette

• Decision Date: 08 March 1911
• Docket Number: No. 6,897.,6,897.
• Citation: 94 N.E. 242,47 Ind.App. 221
• Court: Indiana Appellate Court
• Parties: REEVES & CO. v. GILLETTE.

47 Ind.App. 221

94 N.E. 242

REEVES & CO.

v.GILLETTE.

No. 6,897.

Appellate Court of Indiana, Division No. 1.

March 8, 1911.

Appeal from Circuit Court, Jay County; J. F. La Follette, Judge.

Action by Reeves & Co. against William E. Gillette, in which defendant counterclaimed. From a judgment overruling a demurrer to one paragraph of the counterclaim and awarding plaintiff certain relief, it appeals. Affirmed.

Roscoe D. Wheat, Emerson E. McGriff, and W. R. Baxter, for appellant. Smith & Moran, for appellee.

HOTTEL, J.

This was an action brought by appellant to enforce the collection of three promissory notes given by appellee, and to foreclose a chattel mortgage on a clover huller, grain separator and engine, and other chattel property given to secure said notes.

The complaint was in one paragraph, to which appellee filed an answer in denial and a special answer of no consideration. A counterclaim in two paragraphs was filed by appellee, to each of which a demurrer was filed, which was sustained as to the first and overruled as to the second paragraph. At appellant's request the trial court made and filed in the case a special finding of facts, with its conclusions of law thereon. Upon this finding the court rendered judgment for appellant in the sum of $43.70, and decreed a foreclosure of the chattel mortgage, and ordered a sale of the property described therein. From this judgment, this appeal was taken.

Twenty-four errors are assigned as grounds for reversal. Counsel for appellee insist that all errors assigned, which are properly assigned as independent errors, have been waived by the failure of appellant to set out in their brief that part of the record necessary for the determination of the question raised by such assigned errors.

The first error assigned is the overruling of the demurrer to the second paragraph of counterclaim. Appellant, in its brief, nowhere sets out the counterclaim, nor does it attempt to state the substance of its contents. Neither is the demurrer, nor the substance thereof, set out in the brief. This assigned error was therefore waived. Jones v. Mayne, 154 Ind. 400, 402, 55 N. E. 956;Aydelott v. Collings, 144 Ind. 602, 603, 43 N. E. 867;Princess Amusement Co. v. Metzger, 169 Ind. 376, 384, 82 N. E. 758;Chicago, etc., Co. v. Walton, 165 Ind. 253, 254, 74 N. E. 1090;Wolverton v. Wolverton, 163 Ind. 26, 29, 30, 71 N. E. 123.

The second error assigned by appellant is as follows: “The court erred in its special finding of facts No. 1; the same being contrary to the evidence.” Errors assigned numbered from 3 to 16, inclusive, are identical with the second above quoted, except each finding of fact, which is alleged to be unsupported by the evidence, bears a different number. These several assignments present no question for the consideration of this court. Matters which are causes for new trial cannot be assigned as independent errors. Leedy v. National Bank, 35 Ind. App. 247, 249, 73 N. E. 1000;Pfau, Treasurer, v. State ex rel. Ketcham, Atty. Gen., 148 Ind. 539, 543, 47 N. E. 927;Hunt v. Listenberger, 14 Ind. App. 320, 42 N. E. 240, 964;Hedrick v. Hall, 155 Ind. 371, 58 N. E. 257.

Errors assigned numbered 17, 18, and 19 separately call in question the several conclusions of law upon the special finding of facts. The appellant has failed to set out the special finding of facts and conclusions of law thereon. It would be impossible for this court to determine whether the conclusions of law were supported by the finding of facts without searching the record to ascertain what the findings and conclusions were. As to these assigned errors, there has been no effort upon the part of appellant to comply,or substantially comply, with the requirement of rule 22 of this court...