Ross v. Clore

• Decision Date: 30 September 1947
• Docket Number: No. 17633.,17633.
• Citation: 74 N.E.2d 747,117 Ind.App. 548
• Parties: ROSS et al. v. CLORE et al.
• Court: Indiana Appellate Court

117 Ind.App. 548

74 N.E.2d 747

ROSS et al.

v.CLORE et al.

No. 17633.

Appellate Court of Indiana, in Banc.

Sept. 30, 1947.

Appeal from Montgomery Circuit Court; Howard A. Sommers, Judge.

Action between Charles Ross and others, and Jesse Clore, administrator with will annexed of the estate of Ella Snyder, deceased, and others, to construe the last will of Ella Snyder, deceased. From a judgment construing the will, Charles Ross and others appeal.

Affirmed.Walter W. Spencer, of Crawfordsville, for appellants.

Raymond O. Evans, of Crawfordsville, for appellee.

HAMILTON, Judge.

This is an appeal from a judgment of the Montgomery Circuit Court construing the last will and testament of one Ella Snyder, deceased.

The sole error relied upon for reversal is stated on page four of appellants' brief as follows:

‘The Court erred in overruling appellants' motion for a new trial to which ruling of the court appellants did at the time except.'

Nowhere in appellants' brief are we able to find a copy of the motion for a new trial; a statement as to the substance thereof; or the grounds assigned therein for a new trial.

Rule 2-17, clause (e), of the 1946 revision of the Rules of the Supreme Court requires that, in appeals where the error assigned for reversal is the overruling of a motion for a new trial, the appellant's brief must set out a copy of the motion for a new trial, the grounds, or the substance thereof. Melvin v. Hamilton, Adm'r, 1936, 101 Ind.App. 456, 457, 199 N.E. 602; Fluck, Jr. v. Dahlberg, 1937, 103 Ind.App. 472, 473, 8 N.E.2d 1008;Lindeman v. Lindeman, 1937, 103 Ind.App. 494, 496, 8 N.E.2d 1004.

Furthermore, clause (f) of Rule 2-17, supra, provides:

‘The briefs shall contain under the heading, ‘Propositions, Points and Anthorities,’ a copy of each assigned error relied on, designated by number as in the original assignment of error, and in case the error assigned is the overruling of the motion for a new trial, then the causes relied upon shall be numbered as in the motion. Each assignment shall be supported by separately numbered propositions, concisely stating the basis of the objection to the ruling complained of. Each proposition shall be supported by separately numbered or lettered points or statements of rules of law applicable thereto, with citation of authorities in support thereof. Assigned error which is not set out in this part of the brief and supported by propositions, points, and authorities will not be considered. * * *'

On pages 23 to 27, inclusive, of appellants' brief, under the heading ‘Propositions, Points and Authorities,’ we find that appellants have stated four separate propositions, supported by six ‘Points' with citation of authority thereunder. Each and all of the ‘Propositions' and the ‘Points' thereunder are stated in general language and are the statements of general abstract legal propositions applicable in the construction of all wills. Nowhere in any of the ‘Propositions' or ‘Points' have appellants made any attempt to specifically apply any of the ‘Propositions' and ‘Points' to the facts in this case or to set out the causes assigned as reasons for a new trial numbered as in said motion and supported...