Robinson v. Horner

• Decision Date: 22 June 1916
• Docket Number: No. 8944.,8944.
• Citation: 113 N.E. 10,62 Ind.App. 456
• Parties: ROBINSON v. HORNER.
• Court: Indiana Appellate Court

62 Ind.App. 456

113 N.E. 10

ROBINSON

v.HORNER.

No. 8944.

Appellate Court of Indiana, Division No. 1.

June 22, 1916.

Appeal from Superior Court, Tippecanoe County; I. E. Schoonover, Special Judge.

Action by Alfred C. Robinson against Cornelius M. Horner. From a judgment for defendant, plaintiff appeals. Affirmed.

C. Robert Pollard and Charles R. Pollard, both of Delphi, and Charles E. Thompson and Charles V. McAdams, both of Lafayette, for appellant. Stuart, Hammond & Simms, of Lafayette, and Emory B. Sellers, of Monticello, for appellee.

McNUTT, J.

This is a second appeal of this case. The action was begun in the White circuit court at the September term, 1904, and the venue changed to the court below. Appellant withdrew his first paragraph of complaint. A demurrer was sustained to each of the remaining two paragraphs.By leave of court, the plaintiff filed what is termed a second amended third paragraph of complaint, to which a demurrer was sustained. Thereupon appellant refused to plead further, and elected to stand upon the second paragraph and the second amended third paragraph of his complaint. Judgment was rendered against appellant from which he appealed to this court. The cause was transferred to the Supreme Court, which held that the lower court erred in sustaining the demurrer to each of said paragraphs, holding that each of said paragraphs stated a cause of action against appellee; the court saying:

“The character of this action and the theory upon which the complaint proceeds is a suit in equity by one partner to compel his copartner to account. We think that each of the paragraphs to which a demurrer was sustained was sufficient in facts to put appellee upon his answer, and that the court therefore erred in sustaining a demurrer thereto.”

See Robinson v. Horner, 176 Ind. 226, 234, 95 N. E. 561.

To this complaint appellee filed an answer in two paragraphs: (1) A general denial; (2) an answer of settlement of the affairs of the partnership and a payment by appellee to appellant of the full amount of plaintiff's interest in said partnership business before the bringing of this action. The issues were closed by a reply by appellant to the second paragraph of answer in general denial.

Appellant assigns in this court two errors, one of which is the overruling of his motion for a new trial

[1] Appellant has no heading of “a concise statement of so much of the record as presents every error and exception relied on,” in his brief, as provided by clause 5, rule 22 of this court (55 N. E. vi); but he does set out his motion for a new trial, which contains separate grounds or reasons therefor. In that part of his brief under “Points and Authorities,” appellant states seven abstract legal propositions, which may have some application to one or more of the rulings assigned as error, and intended to be relied for a reversal; but no attempt is made to apply any particular one of the many assigned, as a cause for a new trial, except possibly “that the decision of the court is not sustained by sufficient evidence.”

“Mere abstract statements of law or fact, or both, unless applied specifically to some particular ruling or action of the court, although contained in appellant's statement of points, present no question.” Chicago, etc., R. Co. v. Dinius, 180 Ind. 596, 627, 103 N. E. 652, 663;Leach v. State, 177 Ind. 234, 97 N. E. 792;Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033;Inland Steel Co. v. Smith, 168 Ind. 245, 80 N. E. 538;Weidenhammer v. State, 181 Ind. 349, 103 N. E. 413, 104 N. E. 577, and cases there cited; Palmer v. Beall, 110 N. E. 218, and authorities cited.

Under said authorities, we must hold that the only question presented by appellant's brief is the one challenging the sufficiency of the evidence to support the decision of the trial court.

Appellee has filed a motion to dismiss this appeal because of the failure of appellant to comply with the first and fifth clause of rule 22 of the rules of this court in the...