White v. Lafoon

• Decision Date: 16 September 1963
• Docket Number: No. 19616,No. 2,19616,2
• Citation: 135 Ind.App. 100,192 N.E.2d 474
• Parties: Lizzie Lyles WHITE, Estate of John J. White, Deceased, Carl Hardiman, as Administrator of the Estate of John J. White, Deceased, Appellants, v. Mildred LAFOON, Appellee
• Court: Indiana Appellate Court

Page 474

192 N.E.2d 474

135 Ind.App. 100

Lizzie Lyles WHITE, Estate of John J. White, Deceased, Carl Hardiman, as Administrator of the Estate of John J. White, Deceased, Appellants, v. Mildred LAFOON, Appellee.

No. 19616.

Appellate Court of Indiana, Division No. 2.

Sept. 16, 1963.

Sanford Trippet, Arthur S. Wilson, Princeton, for appellants.

Weyerbacher, Lacey & Rideout, Boonville, McDonald & McDonald, Princeton, for appellee.

KELLEY, Judge.

Appellee's claim against the appellant estate and administrator was tried by jury and resulted in a verdict for appellee in the sum of One Thousand ($1,000.00) Dollars and costs. Consistent judgment was rendered on the verdict.

Appellants' motion for a new trial, overruled by the trial court, consisted of ten (10) specifications. Specification 1 contained three (3) sub-clauses, designated a., b., and c.; specification 2 contained one (1) sub-clause, designated a.; and specification 10 contained ten (10) sub-clauses, designated a, b, c, d, e, f, g, h, i, and j.

Specifications la. and 10b., c., d., e., h., i. and j. are not argued and are deemed waived. Specification 4 is not a proper specification of error but involves the same matter as specification 3. Specifications 7 and 8 are not proper specifications of error but constitute the same matter as specifications 5 and 6, respectively. Specification 9 is a duplication of specification 8. Specification 10a. is a duplication of specification 2a.

In addition to assigning as error the action of the court in overruling their motion for a new trial, appellants assign error (1) in the overruling by the court of their motion to make appellee's statement of claim more definite, certain and specific, and (2) error of the court in 'refusing to order * * * claimant (appellee) * * * to file a cost bond' on motion of appellants. Said assignment of error (1) is not supported by any argument nor does appellants' brief or the transcript contain a copy of the motion or show the court's ruling thereon. Said assignment of error (2) is not relied upon or argued by appellants. The brief of the latter states: 'Motion granted and said claimant was ordered to file a cost bond.' In the absence of a record showing to the contrary, it must be assumed that the said order of the court was complied with.

Only specifications 1b., c., 2a., 3, 5, 6, and 10f., g., are left for consideration.

Specification 1b. asserts error in that the court 'abused its discretion by its remarks made in the presence of the jury' concerning alleged 'unfair tactics' of appellants' counsel. We do not find in appellants' brief any reference to the filing by them of any special bill of exceptions containing the referred to remarks of the judge in the presence of the jury which appellants assert to be objectionable. In appellants' motion for a new trial and in the argument portion of their brief, certain statements are put in quotes as having been uttered by court and the several counsel, but there is no reference to any part of the record showing any objections made by anyone to any of such statements. It appears from the new trial motion that the court may have given some kind of an instruction to the jury concerning the matter but said instruction, if given, is not set forth in appellants' brief nor is any objection thereto found in appellants' brief. We find no motion in appellants' brief that the objectionable remarks be withdrawn with appropriate admonition to the jury nor does there appear any motion by appellants for a mistrial or that the submission of the cause to the jury by withdrawn. It follows that appellants have failed to demonstrate error as charged in said specification 1b. Fabian v. Goldstone et al. (1952), 123 Ind.App. 49, 53, 103 N.E.2d 920; Smith, Alias Wilson v. State of Indiana (1960), 241 Ind. 1, 14, pts. 12 and 13, 168 N.E.2d 199.

By Specification 1c., appellants allege that the court abused its discretion 'by failing to provide and require an official reporter of competency to take down in shorthand the oral evidence given in the trial of the cause.' It appears that an Edison Voice Writer recording machine was used in taking down the oral evidence and that the official shorthand Court Reporter transcribed the evidence from the machine. Appellants show no objection made by them to the use of the machine nor any request or motion by them to the court at the time of the trial that the oral evidence be taken down in shorthand by the official reporter. Where no request is made for the appointment by the court of an official reporter to take down the oral evidence in shorthand, the failure of the court to appoint such reporter for such purpose is not a valid reason for a new trial. Rudisell v. Jennings (1906), 38 Ind.App. 403, 407, pt. 5, 77 N.E. 959, 78 N.E. 263; Chicago & Southeastern Railway Company v. McEwen (1904), 35 Ind.App. 251, 259, 71 N.E. 926. Appellants have stablished no error by said Specification 1c.

Specification 2a. of appellants' motion for a new trial, asserts that 'Error resulted from misconduct of one of claimants' counsel' when he commented, in his closing argument, on appellants' exercise of a peremptory challenge of one of the members of the jury panel. From the briefs it appears that appellants objected to the statements made by appellee's counsel to the jury and requested the court to 'instruct the jury to disregard' such statements and 'that they were not proper and that they should not be considered by the jury.' The court immediately instructed the jury, as requested, and no further action or objection relative to the matter was taken or made by appellants. If appellants deemed the instruction insufficient to cure the error, they were required, in order to raise and preserve the question on appeal, to move to set aside the submission, stating their reasons why the asserted harm was not corrected by said instruction. Kelley v. Hocutt, by next friend, etc., (1955), 125 Ind.App. 617, 620, pts. 2, 3, 128 N.E.2d 879; Ostrowski et al. v. Estate of Ostrowski et al. (1956), 126 Ind.App. 413, 416, 417, 418, 131 N.E.2d 345, 347; Oppenheimer, Oppenheimer Bros., Inc. v. Craft (1961), 132 Ind.App. 452, 467, 468, 469, 175 N.E.2d 715; Ramseyer, Exr. v. Dennis (1918), 187 Ind. 420, 116 N.E. 417, 119 N.E. 716; Lawson v. Cole (1953), 124 Ind.App. 89, 92, 93, 115 N.E.2d 134. After an adverse verdict, appellants now claim harm and prejudice to their cause resulting...