Roberts v. Wolfe

• Decision Date: 23 June 1905
• Docket Number: 20,623
• Citation: 74 N.E. 990,165 Ind. 199
• Parties: Roberts et al. v. Wolfe
• Court: Indiana Supreme Court

74 N.E. 990

165 Ind. 199

Roberts et al. v. Wolfe

No. 20,623

Supreme Court of Indiana

June 23, 1905

From Superior Court of Vigo County; S. C. Stimson, Judge.

Action by Belle Wolfe against Joseph D. Roberts and others. From a judgment for plaintiff, defendants appeal. Transferred from the Appellate Court under § 1337u Burns 1901, Acts 1901 p. 590.

Affirmed.

McNutt & McNutt and Taylor & Kisner, for appellants.

Henry Crane & Miller and H. S. Wallace, for appellee.

OPINION

Monks C. J.

Appellee brought this action against appellants before a justice of the peace, and recovered judgment. Appellants appealed to the court below, where a trial resulted in a verdict and judgment in favor of appellee.

The complaint, which is in three paragraphs, is assailed for the first time in this court by an assignment that it does not state facts sufficient to constitute a cause of action. The first paragraph is for money had and received, and is clearly sufficient. As the error assigned calls in question the sufficiency of the complaint as a whole, and there is at least one good paragraph, the assignment must fail, even if the verdict and judgment rest upon an insufficient paragraph. United States Express Co. v. Rawson (1886), 106 Ind. 215, 219, 6 N.E. 337; Louisville, etc., R. Co. v. Peck (1884), 99 Ind. 68, 69, and cases cited.

It is assigned for error that the court erred in overruling appellants' motion for a new trial. The causes for a new trial not waived require for their determination an examination of the evidence. Appellee insists that appellants, by their failure to comply with the rules of this court, have waived a determination of said questions. The name of each witness, and whether the examination is direct or cross or redirect, is not stated on each page of the bill of exceptions, as required by rule three of this court. For this reason, the questions depending for their determination upon said bill of exceptions will not be considered. Ewbank's Manual, § 119; State v. Van Cleave (1902), 157 Ind. 608, 62 N.E. 446; May v. State (1894), 140 Ind. 88, 94, 95, 39 N.E. 701; Egan v. Ohio, etc., R. Co. (1894), 138 Ind 274, 37 N.E. 1014; State, ex rel., v. Lankford (1902), 158 Ind. 34 at 34-36, 62 N.E. 624; Newman v. Newman (1901), 26 Ind.App. 238, 58 N.E. 560, and cases cited; Citizens' St. R. Co. v. Damm (1900), 25 Ind.App. 511, 520, 521, 58 N.E. 564, and cases cited; Otis v. Weiss (1899), 22 Ind.App. 161, 163, 53...