The Consumers' Gas Trust Co. v. Huntsinger

• Decision Date: 10 January 1896
• Docket Number: 1,008
• Citation: 42 N.E. 640,14 Ind.App. 166
• Parties: THE CONSUMERS' GAS TRUST COMPANY v. HUNTSINGER ET AL
• Court: Indiana Appellate Court

42 N.E. 640

14 Ind.App. 166

THE CONSUMERS' GAS TRUST COMPANY v. HUNTSINGER ET AL

No. 1,008

Court of Appeals of Indiana

January 10, 1896

14 Ind.App. 156. At 166.

Original Opinion of January 15, 1895, Reported at: 14 Ind.App. 156.

Petition overruled.

OPINION

ON PETITION FOR REHEARING.

ROSS J.

The appellant very earnestly insists that a rehearing be granted and the court pass upon the sufficiency of the third paragraph of the answer to which a demurrer was overruled and the second paragraph of the reply, to which a demurrer was sustained.

The sufficiency of these pleadings was not determined in our original opinion, although considered in arriving at the conclusion reached, for the reason that, as we understood the argument of appellant's counsel, it was addressed exclusively to the sufficiency of the evidence to sustain the verdict, applicability of the instructions thereto, and that the facts found by the jury in answer to the interrogatories were irreconcilable with the general verdict. And we are still of the opinion that the drift of all the argument adduced by the appellant in its original brief was so addressed, although there was inserted therein the following which we quote as all of the argument directed, or in any manner referring to those pleadings, viz: "If our construction of the act of 1889 is correct, the court below erred in overruling appellant's demurrer to the third paragraph of appellee's answer, and in sustaining appellee's demurrer to the second paragraph of appellant's reply, and in refusing to give the instructions requested by the appellant to the jury, and giving the instructions given by the court of its own motion." This of itself cannot be considered to be an argument against the sufficiency of the third paragraph of the answer, or in favor of the sufficiency of the second paragraph of the reply. We must therefore look to the brief and see what precedes and succeeds the language above quoted to determine whether or not it stands as a mere interpolation, or is a part of the rest of the argument. Preceding the language above quoted, the brief is first devoted to a statement of the record specially referring to the pleadings filed, issues made, pages of the record where rulings are to be found, etc., and then follows a copy of the specifications of error assigned in this court. Counsel next give a statement of the facts proven and also make certain extracts from the evidence. After this they discuss the rights which they claim appellant acquired under the act of 1889, Elliott Sup., section 1016 (section 5103, Burns R. S. 1894). Then following the language above quoted they made extensive quotations from the case of Kincaid v. Indianapolis Nat'l Gas Co., supra (8 L. R. A. 602), and then refer to and quote from the evidence given on the trial.

Neither the facts established by the evidence nor the evidence itself could be considered by this court in determining the sufficiency of either the answer or the reply, hence when counsel's entire argument was specially directed to the facts proven and the evidence introduced no other conclusion could reasonably follow than that they were pressing for consideration the questions which properly arose, requiring an examination of the evidence and a consideration of such facts.

But this is not all that convinces us that the sufficiency of these pleadings was not intended to be or was discussed, for appellant's brief, without any further or other mention or reference to either the answer or reply than above quoted, concludes thus: "We insist that the judgment of the court below should be reversed, and inasmuch as the answers by the jury to the interrogatories indicate the parties who destroyed the pipe, and fixes its value, that the judgment of this court should simply direct the court below to render judgment against the appellees for $ 566.15, the value of the pipe as found by the jury, with interest and costs."

This court, being one of last resort, is appealed to by one feeling himself aggrieved, and asked to correct any errors made prejudicial to his interest, in the court below, and it aims to do that duty fearlessly and without favor. Of course the rule long established and firmly adhered to, that it is presumed the judgment of the trial court is right until the contrary is made to appear, requires the complaining party to show affirmatively some ruling or error prejudicial to his rights. He must do this not only by presenting a record making this affirmative showing, but he must point out...