57 Ind. App. 696 | Ind. Ct. App. | 1915
This suit was brought in the Dekalb' Circuit Court by William A. Zonker against The German Pire Insurance Company of Indiana, Edward Zonker and Jacob Perkins, guardian of Peter Reinoehl, a person of unsound mind, to recover on a fire insurance policy and to settle certain claims relating to mortgages on the property insured. The venue was changed to the Allen superior court where issues were formed and a trial had which resulted in a verdict for the plaintiff in the sum of $5,138; for the cross-complainant Edward Zonkers in the sum of $925, and for the cross-complainant Jacob Perkins, guardian, in the sum of $183. Over appellant’s motion for a new trial, judgment was rendered on the verdict, from which this appeal was taken.
The transcript was filed in this court on January 29,1912, and appellant filed its brief on September 30,1912. On May 5, 1913, appellees filed their briefs and petition for oral argument. In this brief appellees pointed out that appellant had not complied with the rules of the court in preparing its brief so as to present any question relating to the motion for a new trial, and also showed that the instructions had not been brought into the record; that only instructions Nos. 1 to 6, given by the judge were filed with the clerk and properly in the record; “that the record does not disclose that the instructions claimed to have been tendered by the appellees were ever in fact filed with the clerk" that “before instructions can be brought into the record under this statute it is an essential prerequisite that they must be filed with the clerk, and this fact must be affirmatively disclosed Dy the record.” Under points and authorities appellee restated the foregoing, propositions and cited numerous decisions in support thereof, among which are the following: Indianapolis, etc., Transit Co. v. Walsh (1909), 45 Ind. App. 42, 90 N. E. 138; Thieme & Wagner Brew. Co. v. Kessler (1911), 47 Ind. App. 284, 94 N. E. 338; Muncie, etc., Traction Co. v. Hall (1909), 173 Ind. 95, 89 N. E. 484; Indianapolis, etc., R. Co. v. Ragan (1909), 171 Ind. 569, 86 N. E. 966.
On November 5, 1913, appellant filed its reply brief in which it asserts that appellees’ brief deals in “sophistry” and “technicalities", and states that “appellant insists that it has complied in all fairness and good faith with the rules of this court, and such a substantial conformity entitles it to a hearing, on the merits”, and in support of this position cites the following: Kirk v. Macy (1913), 53 Ind. App.
The ease was distributed prior to December 1, 1914, and was set for oral argument on that date, and on the same day appellant filed its petition for a certiorari, in which it states that only the instructions given by the court on its own motion are properly in the transcript, and that the instructions requested by the parties are omitted therefrom, and requests that the writ issue directing the clerk to duly certify said instructions to this court, and to correct an alleged error in the transcript where it states “Defendants submit written instructions with the request that the same be given to the jury by the court herein, in these words: (Motion not on file)”. Appellant’s attention was specifically called to the condition of the record in regard to the instructions in May, 1913, by appellees’ briefs, and in November following it asserted its satisfaction with the record and briefs and took no steps to correct either until December 1, 1914, about nineteen months subsequent to the time its attention was so called to the fact that the instructions were not in the record, and almost eleven months subsequent to the filing of its reply briefs as aforesaid. On this record we hold that appellant has waived any right it may originally have had to correct the transcript, by extreme delay both before and after its attention was called to the condition of the transcript, and by the further fact that when its attention was called thereto it asserted its satisfaction therewith in its reply briefs.
Noik — Reported in 108 N. E. 160. As to misconduct of attorney at trial and its effect, see 9 Am. St. 559, 100 Am. St. 689.