Wagner v. Wagner

Decision Date04 June 1915
Docket Number22,813
Citation109 N.E. 47,183 Ind. 528
PartiesWagner v. Wagner et al
CourtIndiana Supreme Court

Rehearing Denied October 8, 1915.

From Ripley Circuit Court; Robert C. Creigmile, Judge.

Action by Louis Wagner and another against Nicholas Wagner. From a judgment for plaintiffs, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)


James W. Fortune, for appellant.

H. W Phipps and E. C. Hughes, for appellee.


Lairy, J.

The errors assigned in this court are as follows: "(1) Neither paragraph of appellee's complaint states facts sufficient to constitute a cause of action. (2) The court erred in overruling appellant's motion for a new trial." The first assignment of error presents no question for decision. By an act of the legislature it is provided that, "when a demurrer to any complaint is filed on the ground that the complaint does not state facts sufficient to constitute a cause of action, a memorandum shall be filed therewith stating wherein such pleading is insufficient for want of facts, and the parties so demurring shall be deemed to have waived his right thereafter to question the same for any defect not so specified in such memorandum." Acts 1911 p. 415, § 344 Burns 1914. Since this act went into effect it has been held that the sufficiency of a complaint can be tested only by a demurrer which complies with this statute and that an independent assignment of error can not be based upon the insufficiency of the facts stated in the complaint. Robinson v State (1912), 177 Ind. 263, 97 N.E. 929; Pittsburgh, etc., R. Co. v. Home Ins. Co. (1915), ante 355, 108 N.E. 525, and cases cited.

The only question which appellant seeks to present under the second assignment of error is the sufficiency of the evidence to sustain the finding. This question can not be decided without a consideration of the evidence. The bill of exceptions contained in the record does not show that it contains all of the evidence given in the cause. Under such a state of the record the evidence can not be considered. City of Alexandria v. Cutler (1894), 139 Ind. 568, 39 N.E. 237; Rector v. Druley (1909), 172 Ind. 332, 88 N.E. 602. A statement contained in the certificate of the court reporter appended to the evidence transcribed by her and embodied in the bill of exceptions to the effect that the evidence so transcribed was all of the evidence given in ...

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28 cases
  • Coney v. Farmers State Bank
    • United States
    • Indiana Appellate Court
    • April 6, 1970
    ...therein, and when it is included, it is mere surplusage. Rowan v. State (1916), 184 Ind. 399, 111 N.E. 431; Wagner v. Wagner (1915), 183 Ind. 528, 109 N.E. 47; Parker v. State (1915), 183 Ind. 130, 108 N.E. 517; Walsh v. Gilmore (1960), 130 Ind.App. 307, 164 N.E.2d We cannot determine, from......
  • Greenwell v. Cunningham
    • United States
    • Indiana Appellate Court
    • January 19, 1948
    ... ... Robinson v. State, supra; Pittsburgh, etc., R. Co. v ... Home Ins. Co., 1915, 183 Ind. 355, 108 N.E. 525, ... Ann.Cas.1918A, 828; Wagner v. Wagner, 1915, 183 Ind ... 528, 109 N.E. 47; Jackson, Rec., v. Rutledge, 1919, ... 188 Ind. 415, 122 N.E. 579 ...           The ... ...
  • Second Nat. Bank v. Scudder
    • United States
    • Indiana Supreme Court
    • March 17, 1937
    ... ... Pittsburgh, ... C., C. & St. L. R. Co. v. Home Insurance Co., 183 Ind ... 355, 108 N.E. 525, Ann.Cas.1918A, 828; Wagner v ... Wagner, 183 Ind. 528, 109 N.E. 47; Cleveland C., C ... & St. L. R. Co. v. Markle, [212 Ind. 288] 187 Ind. 553, ... 119 N.E. 371; Heck v ... ...
  • Baltimore And Ohio Railroad Company v. Ranier
    • United States
    • Indiana Appellate Court
    • November 5, 1925
    ... ... given in the cause is not sufficient, as such certificate is ... no part of the bill of exceptions. Wagner v ... Wagner (1915), 183 Ind. 528, 109 N.E. 47. We, ... therefore, hold that no question is presented for our ... consideration as to the ... ...
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