Slifer v. Willlard, 10852.

• Decision Date: 18 May 1921
• Docket Number: No. 10852.,10852.
• Citation: 131 N.E. 87,78 Ind.App. 88
• Parties: SLIFER v. WILLlARD.
• Court: Indiana Appellate Court

78 Ind.App. 88

131 N.E. 87

SLIFER

v.WILLlARD.

No. 10852.^*

Appellate Court of Indiana, Division No. 1.

May 18, 1921.

Appeal from Superior Court, Allen County; Wm. N. Ballou, Judge.

Action by Inez Williard against John Slifer. Judgment for plaintiff, and defendant appeals. Affirmed.

Harry H. Hilgemann, of Ft. Wayne, for appellant.

Mountz & Brinkerhoft, of Garrett, James E. Pomeroy, of Auburn, and John Aiken, of Ft. Wayne, for appellee.

BATMAN, J.

Appellee instituted this action against appellant by filing a complaint in one paragraph to recover damages for an alleged slander. Subsequently an amended complaint in two paragraphs was filed. Demurrers to the original complaint, and to each paragraph of the amended complaint, were overruled. An answer in general denial closed the issues. The cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and is now prosecuting this appeal on an assignment of errors, which requires a consideration of the questions hereinafter determined.

[1][2][3] Appellant asserts that the court erred in overruling his demurrer to the original complaint; but as that complaint was taken out of the record by the filing of the amended complaint, no question as to the correctness of such ruling is before us. Holland v. Hummell (1908) 43 Ind. App. 358, 87 N. E. 662. He also asserts that the court erred in overruling his demurrer for want of facts to the second paragraph of the amended complaint. The only reason assigned in support of such demurrer in the memorandum accompanying the same is that it appears on the face of said paragraph that the cause of action stated therein accrued more than two years prior to the filing of the amended complaint and the commencement of said action. All other objections thereto are therefore waived. State ex rel. v. Bartholomew (1911) 176 Ind. 182, 95 N. E. 417, Ann. Cas. 1914B, 91. In determining whether this objection is well taken, we must confine our consideration to the paragraph in question, as other parts of the record can neither weaken nor strengthen it. National Lumber Co. v. Hobbs, 129 N. E. 255. When said paragraph is so considered, it does not disclose the fact upon which appellant relies. We therefore conclude that his contention with reference to the second paragraph of the amended complaint is not well taken.

[4] Appellant contends that the court erred in overruling his motion for a new trial. Appellee attempts to meet this contention by asserting that appellant's brief is not sufficient to present any question in that regard. While appellee's criticisms are not without merit, still we are of the opinion that there is not such a failure to comply with the rules, except in a single instance hereinafter mentioned, as to require us to refuse to consider the questions which appellant has attempted to present. Appellant contends that the court erred in giving instructions numbered 4, 5, and 7. Instructions 4 and 7 are not set out in appellant's brief, but an attempt was made to state their substance. While it is not absolutely necessary that an instruction to which objection is made should be set out verbatim in order to have it considered on appeal, it is the better and safer practice to do so. United Coal, etc., Co. v. Daugherty (1912) 51 Ind. App. 165, 96 N. E. 477. However, since a substantial statement of the substance of such an instruction will suffice, we will resolve any doubt in that regard in appellant's favor, and consider the merits of his contention with reference to said instructions. The objection urged against each of said instructions is that the court thereby informed the jury that appellee could recover if she proved the allegations of either paragraph of her complaint, and as neither paragraph thereof stated a cause of action, it was error to so instruct the jury. We do not question appellant's contention that where a complaint...