*1 indicate and not a secret intent. open of the owner acts as conduct of the landowner are acts and such Where naturally he fairly lead to the conclusion that intended and use, , public he not be ... to dedicate the land permitted dedication, .” Town aver that there was . . Gatewood, p. Poseyville supra, cited. cases v. question, person whether a think that intends “We make a his acts and statements ground . . determined from dedication . must be may and he . . . not from what subsequently testify intent in relation to as his real rights public or third . . and where the matter parties . they right upon concerned, to act are have a such presumption.” City Dahn Ind. Columbus v. 330, 337. “ declaration, and conduct of the landowner acts ‘When fairly naturally as lead to the conclusion are such and uses, public and others to dedicate land to he intended in declaration, open good faith acted acts and his may a different the landowner have entertained fact and declarations from that manifested acts intention his consequence; prevail cannot of no such intentions is against secret acts, upon and have which the the force his conduct ” Pittsburgh public dealing relied.’ or him those Noftsger, pg. supra, 617. having all the evidence considered The trial court duty conflicts, having as testimony reconciled thereon, can- court, and submitted of a the same. not disturb
Judgment affirmed. JJ., Faulconer, J., Wickens, concurs in concur.
Carson result. Reported 214 N. 2d 395.
Note. — v. Alexander. of Alexander Estate January Rehearing denied March 20,220. 1966.] Filed [No. *2 Gary, F. Bowen and Kimbrough, Donald & Work Givan, of In- Bowen, Myers, Northam & Givan Richard dianapolis, appellant. appellee. Stanton, Indianapolis,
David P. *3 appeal and is an from a verdict J. This Carson, Superior County growing of an action instituted in Lake out Court, the of the Room 4. The formed claim issues were against the below, appellee herein, plaintiff the estate in personal the for rendered to decedent decedent services in the three To the claim defendant filed answer his lifetime. provisions paragraphs 1-3. under the Court rule allega- every paragraph of The first answer denied each and affirmatively paragraph sets of the claim. The second tion and claimant and the decedent were brother sister the parties the because of love and affection between and that gratuitous. paragraph The third any services rendered were agreement whereby allged into the had entered that an been per agreed plus pay to month the sum of decedent had $50.00 August, 1955, and that from claimant room and board petitioner of the decedent the received the date of death until pursuant terms of the payments subsistence agreement.
Upon the thus formed the matter issues was submitted jury in for determination which resulted a verdict plaintiff $14,500.00 upon in the amount of which court judgment. rendered consistent filed a motion containing specifications some of collectively. They and treat will summarize are summarized as follows: jury contrary
1. The of the verdict to law. by jury The verdict of the is not sustained sufficient evi-
dence. damages 3. The verdict was excessive in that the awarded jury claimant herein were not sustained evidence. Specifications 4, 5, 6, 7, 8, 9, 14 each individually question a respect ruling raised admitting in objection court into evidence over the testimony defendant of certain witnesses on direct examina- tion, examination, cross and re-direct examination.
Specification charges admitting the court erred in objection into evidence over the alleged of the defendant the decedent. Specifications charge 16 and 17 erred in calling objection as its own witness over the of the defendant claimant, permitting and in testify the claimant as to conversations and transactions between herself de- procedure cedent that such policy contravened the set forth legislature 2-1715, Replacement. Burns’ 1946 § Specifications charge 18 and 19 the court with error sustaining objection plaintiff an to certain evidence excluding offered defendant such evidence. *4 Specification charges 20 refusing the court with error in argument allow defendant’s counsel to plaintiff’s rebut an of presence jury in charging counsel made plaintiff’s argument highly prejudicial was to the case of defendant.
447 giving in charges the court with error Specification 21 9. 1, plaintiff’s instructions numbers tendered refusing in charges court erred Specification 22 give instruction number 4. tendered defendant’s assignment erred of is that error The sole overruling consider appellant’s trial. We shall motion new grouped them assignments in the order have which opinion. in this of conflict, the effect this case is
Since the evidence weigh require specification us to appellant’s number would of for that our and substitute evidence repeatedly held fact. We have the trier Superior Zilky Lake ex rel. not do this. State we will Flanagan, (1961), 128, 2d Wil 242 Ind. 175 N. E. 9. Court 2786, Appellate Prac Hamilton, trout Indiana Trial and & § Parts, tice, Pocket and cases cited therein. laid down specification 2 and the rules
Under number Lummus Co. Supreme of Pokraka v. in the case our Court 669; Hinds, Execu- 523, N. 2d 34, tor, McNair, (1955), 235 Ind. etc. v. et al. required to consider the evidence E. 2d arewe appellee inferences all reasonable favorable to the most or not whether can therefrom determine be drawn conclusion have arrived at a men would reasonable minded We fact. that arrived at the trier different than opposite result application of the above rule an conclude necessarily only therefore one reached and be would jury contrary to is not law. verdict appellant’s Specification 3 in the motion number cogent application is not sustained appellant’s in the brief. The of authorities far short conclusions and has fallen stated has 2-17. requirements rule See under Court Hamilton, Trial and Flanagan, Indiana Wiltrout & § There Practice, Pocket is therefore Parts Appellate *5 448
question presented for to appeal our consideration in this as specification number 3. respect specifications 4, 7,
With
6,
to
14
13 and
objections
conclude from the
proper
record that the
not
were
ly
appellant’s
in
saved
motion for
trial. Our
courts have held that
the motion for new trial must
present
of
errors
law relied on in
a manner
such
rulings
that the trial court had an
opportunity
correct such
sufficiently
and must be
definite to show error to this court.
City
Indianapolis
Durham
(1952),
74,
v.
App.
108
Ind.
of
205;
2dE.
(1949),
v. State ex
rel. Anderson
Crawford
665,
Ind.
A careful appellant’s consideration of indicates that brief presented respect propositions is 8,
5, 10 and 12 and the same are therefore deemed waived. upon
The
is
appellant
burden
by
to establish
his brief
by proper
and to show
transcript
reference to the
cogent argument and the citation of
authorities
reversible
error has been committed
court.
general
A
appellant’s
summarization in the
brief con
taining
pages
references to
transcript
and lines in the
not
is
compliance
with the
rules
Court and the deci
interpreting
sions of that
in
Sinks, Taylor
rule 2-17.
(1956),
State
235 Ind.
Specification 15 based appellant admitting objection over the erred any nothing contained of the decedent. There is will except place appellant’s brief the conclusions content of the will. the effect and as evidence in the brief does not set condensed recital of the question. copy the This or material substance concerning comply point therefore with the rules does *6 procedure Appellate be considered same not this court. points specifications appellant 16 and 17 the
Under appellee court’s the court called Arletha Alexander as the pursuant provision This was done witness. 2-1718, Replacement. pertinent part of Burns’ 1946 The § that statute reads as follows: require any party may, discretion, . or the “. . court its person testify, any such
to a suit or other abuse of appeal.” (Our emphasis) shall be discretion reviewable on language clear and unam- of the statute is the We think trial court and will biguous. is vested in the The discretion an has court when there been only reviewed this be long of Indiana cases A line of such discretion. abuse by the trial of discretion the exercise have held that reviewable; only power it the abuse of is is Admr., Christman, Hack appeal. v. on reviewable which is 165; Heavin App. 156 N. v. Suther- (1927), Ind. E. 86 313, 43; 310, v. App. 64 E. 2d Bailin (1945), N. 116 Ind. lin 7, In 57 E. 2d 436. the case (1944), 223 Ind. N. Bailin (1943), 650, Ins. Meixel 221 Ind. Co. v. Nat. Wisconsin Life 78, 2d this comment our 655, E. find 51 N. (1940), et ux. v. et al. quoting from Ferrara Genduso
Court
348,
part of trial court appeal.’ on . .” applicable to consideration of a cause . Further Christman, Hack, the case of supra, Admr. v. this court said: jurisdiction, “In gen- this it well settled that there is eral is, rule for the not, determination of what and what is an abuse of question discretion. The solution when depend it upon arises particular must facts in each case.
Dearing (1911), 9; App. 414, Coulson 48 Ind. E. Talbott, Admr. v. App. Barber 38 N. 487, so, require correctly 54 Am. St. 491. It held, has also been power court, Code, under 280 of § testify unwilling a witness to is not limited to (1913), wit- Myers App. 327, nesses. v. Manlove Ind. N. E. 661.” is in provision “It our a wise Code court, authorizes discretion, in its receive testi- mony of a Otherwise, claimant a case of this character. injustice power would often result. This of the court should, credit course, caution; be exercised is to the it of our trial courts that it is in rare instances power that the is abused.” burden is demonstrate discretion was abused. record in the We conclude from the prima appellee
case before us that case facie *7 by appellee was established other before the evidence required testify. opinion was to is our It therefore testimony that the appellee of the was cumulative served only clarify to already the evidence in the case. The case which we have been able to find in a which resulted re- proposition prima versal turned on the case had facie established, permitted first been and further the testify claimant to while in the case us the claimant before required by testify. toas the opinion court to In our there was by no abuse of discretion the trial court in the case before us. specification appellant charges respect In 20 the error with argument by plaintiff’s presence an counsel in the of the jury prejudicial and contends that the was of case the defendant. An examination of the record indi question properly by cates this was not saved the rules
'451 of Johnson by in the case court as heretofore laid down this 2d App. Basile claiming predicated error are Specifications 21 and defendant given the plaintiff for and to which instructions judge by the trial objected, and further a refusal by defendant. While give requested an instruction given plaintiff and to which the instructions clearly it is objected might more stated have been defendant they general of law a statement apparent contain us supported certainly they each were which is correct and jury was In our evidence the case. some theory general the de- these instructions. misled in- other 4 is covered fendant’s instruction number general long rule this It been the structions in the case. has of the following of the Court the decisions a if instructions taken as whole of Indiana that State properly fairly jury on issues within fully and instruct jury case province then the of the consideration will not be reversed.
Concluding we error was committed that no reversible jury court. affirm the verdict of the Prime, Faulconer, JJ., J., concur. C. Wickens Rehearing Petition
On rehearing petition for considered the have J. We Carson, nothing pre- opinion that our It is case. filed the above change opin- petition necessitates in the sented of this court. ion however, feel comment counsel, we should
In fairness rehearing. petition 6 of the paragraphs on presentation considered what we opinion indicated Our appellant’s motion for 3 in the specification number appears of the brief it Upon inadequate. re-examination *8 argument pages present on his appellant did Supreme Court rules. We sufficiently comply with the any presents reason argument however, feel, that this do not reached. previously change of the result which we for a 18 of the specification number points Appellant appellant’s brief page 97 of set out at for new trial is motion specifi- disposition of included not have been and should sup- argument presented in We conclude that cation 19. if error specification us that the port not convince 18 does fairly fully and any case was In our harmful. was jury. proper and a result was reached tried sup- of the will points out that the substance Appellant is in- specification 15 argument port out under set at appellant’s brief portion cluded in another contents pages presentation of the 52 and 53. containing portion of the brief from that this exhibit required the court citation of authorities recog- not do separate the brief. We to refer to a section of giving consideration practice, full but nize this as best separate rehearing petition appellant’s petition conclude portions referred to such of the brief admitting into the will not commit error that the court did preju- rights were that the evidence rehearing petition is denied. thereby. The diced Wickens, Faulconer, J., concur. J., Prime, J. and C. Reported Rehearing in 212 E. 2d denied Note. — 2d 403. N. E. Jones, Ridge, Inc. v. etc. et
Meadow al. 20,377. Filed March [No. 1966.]