*1 575 sup- here to ample evidence sufficient There the decision findings port we hold of fact and contrary to law. is not not err therefore, the court did
Wе, hold that further overruling motion for a new trial. affirmed.
The
Carson,
Faulconer,
concurs in result.
J., concurs.
hearing
participated
of the oral
Martin
While
judgеs
named, he did
argument
above
and conference
opinion.
adoption
this final
participate
not
Reported in
Custer 20,160. April Rehearing denied Filеd [No. April 1966.] Transfer denied *2 Howard S. Edgar Grimm Grimm, A. and Grimm & Grimm, of Auburn, appellant. for
William F. McNagny, Bruggeman, J. Barrett, A. Bar- rett & McNagny, of Wayne, Fort appellee. appeal predicated J. This upon brought an аction
Mote, by appellant against appellee damages per- on account of injury sonal sustained in a collision of an automobilе in which riding passenger was as being with an automobile operated by appellee. the For the reasons hereinafter ex- plained, only possiblе error by appellant question cerns the as Special Judge to whether Trial prejudicial reversible and rulings error in certain on by appellant. vаrious motions
The record following: indicates the 30,1961 Complaint June July filed—Summons returnable — 19, 1961. July 26, appears by 1961—Defendant counsel and ruled to answer within days. fifteen May 25, complaint 1962—Amended copy mailed to filed— defendant’s counsel. parts defendant to strike out 1962—Motion June plain- complaint copy to mailеd amended — attorney. tiff’s Aug. change from Application venue 1962— Judge Judge Special selected. — Aug. Henry Springer of But- 22, 1962—The Honorable C. Judge. Special ler, Indiana, qualified as parts Sept. 24,1962 to out defendant strike —Motion complaint on amended to with- Defendant ruled answer overruled. days. in ten May 29, other filed mоtion to strike out 1963—Defendant complaint and, al- parts of amended ternative, complaint require plaintiff amend his to alleging speed the rate of defend- traveling Copy prior collision. ant was Butler, Special In- at mailed
diana. May 28, 1963, for de- Motion, marked file June 1963— judgment. fault plaintiff. addressed to defеndant June 1963—Motion *3 Judge complaint Special sent to Amended May 29, 1963. on plaintiff de- Supplemental motion 7, June 1963— judgment. fault 7, under of files Rule June 1963—Defendant answer Supreme Court. parts of 22,1963 Argument on motion to strike June — supplemental mo- complaint amended and Rulings judgment. taken for default tion July 1, until 1963. under advisement 1, Speсial July both motions ar- overrules 1963— gued 26, 1963, on June and cause was set jury on 1963. trial November plaintiff’s at time The record reveals that no after above any сomplaint appellee violate rules was did amended exception of pleading procedure, possible with the of days appellee’s on a failure to answer within ten September 24, Appel- on issued rule answer judgment no motion for default until lant judge apparently by the trial and said motion wаsn’t received having Appellee, filed a motion to strike until June his or, alternative, require appellant to make out complaint specific May 29, 1963, day on one after more filed, ap- appellant’s motion was for default (5) days brought proximately to the five before the same was judge, any of in сon- attention the trial could not wise be in sidered default. impressed appellant’s are not that his
We with contention rights prejudiced judge re- were or thаt the trial rulings supple- in
versible error on the motion and his judgment against appellee, mental motions for default long view established and almost universal may rulе that trial courts exercise sound discretion matters of this character. In the case of Evansville Laun- White Swan dry, Inc. (1949), v. Goodman 228 Ind. 91 N. E. 2d it is stated: filing making allowing up “The of issues and pleadings within reply expired is a after rule to answer or has court, court the sound discretion of the trial and this discretionary power
will not therе disturb such unless (Cases cited) . abuse. . .” jury tried to This cause was who returned a verdict against appellee appellant favor of on formed the issues complaint damages appel- amended and the answer lee. bring
Appellant, by sought only praecipe, into the parts thereof, reasonаbly record certain and it could be significant may parts cluded that omitted. there be Particularly request Bill did fail to Exceptions transcript, find included in the and wе *4 Exceptions Hence, any no such Bill therein. which error may have been committed in the trial of the is not issues presented to this Court. may possibly if we were to hold that the trial
Even court error, appellant demonstrated, by has not have the presented us, prejudicial record error, as the witness jury finding verdict of the appellee against for appellant, and the resultant on the verdict. This leads us to conclude that had the trial court sustained any supplemental motion or appellant motion of for a default judgment, appellant required then would have been to estab- prima right lish evidence a rеcover, which he facie apparently was unable jury. thereafter to do before a This kind of record forces us to the that conclusion if there were any judge refusing error the trial the motion or motions judgment, for error, any, default prejudicial. such if was not Appellee seasonably or, filed herein a motion to dismiss alternative, judgment, ruling the to affirm the the on which abeyance pending
was reserved and held in final the appeal. submission this Since have had we the bene- fit of the entire parties, record justiciable the reason that has not submitted a question determination, we now sustain the motion to appeal. dismiss this
Appeal dismissed.
Bierly, Smith, JJ., P. Hunter and concur. Rehearing.
On Petition appellant having designated petition J. The filed a Mote, Rehearing,” appellee as a “Petition for “Brief Opposition Rehearing.” Having to Petition for considered petition by appellant, opinion it said of this Court compliance Supreme with Rule of the Rules lacking. Court
This rule stаtes: “Rehearings. Application rehearing any for a cause signed by petition, separate briefs, shall be made from the by counsel, twenty (20) days and filed clerk with the within decision, stating concisely from rendition of the the reasons why tion thought applica- the decision is to be erroneous. Such may, desired, supрorted by briefs, if briefs but such filing will not be received after the time allowed for may petition. rehearing opposing the file briefs Parties
580 petition. filing days after ten
within 2, September 1940. April 17, Adopted 1940. Effective September 6, 1943.” Effective Amended June peti- support separate of his Appellant has filed no brief with obviously attempted his brief to сombine tion and has ap- rehearing. petition In said statement of reasons his argues only decision is erroneous pellant that our not why, also reiterates attempts present but to reasons in the already considered of the case tentions on the merits including parties heretofore, well as as briеfs support contentions. such authorities citations various rehearing petition for held our courts that It has been not 2-22 and that it must conform to the aforеsaid Rule must Blakely et argumentative v. an brief. See Guthrie be (1956), App. 119, 130 2d 131 127 Ind. N. E. al. Maryland Casualty Co., 357; v. etc. Weiss N. E. 2d 2d App. 156 2d 157 N. E. (1958), Ind. N. E. 129 Underwriters, Inc. v. Smith Automobile In the case of Supreme E. 2d Court (1961), 241 Ind. 171 N. stated: why (referring if reasons the deci- “. . . such reasons stated, thought erroneous) concisely cannot sion is and it is alleged be argument support cоnsidered extensive argument desired, petition errors such separate petition.” from the
must be submitted
argument
language that
must be
the above
“such
Under
ap-
separate
petition,”
conclude that
from
we
requirements
pellant
not conformed to the
of Rule
has
Rehearing
appellant’s Petition dismissed.
Bierly,
Smith, JJ.,
P.
Hunter and
concur.
Rehearing
Reported in
Note. — E. 2d 221. N.