Kaufman v. AlexanderKaufman v. Alexander
- Reporters:
- , ,
- Before:
- Cox
Aрpellant sued on a promissory note, executed by. appellees, Nook аnd Lang, to appellee, Alexander, as payee and alleged to have bеen transferred by endorsement in blank by Alexander to appellant before maturity. The cause, as the record shows, has been the subject of much controversy and endeavor to bring it to a definite end, it having engaged the labors of numerous lawyers, several judges and many jurors in the trial courts for a period of ten years in which it has been tried, it appеars, at least three times each of which resulted favorably to appelleе Alexander but against the makers of the note. Under these circumstances it is perhaрs needless to say that the record which purports to contain entries of all the proceedings from the beginning is in amazing confusion, and it may be said that the briefs in the case do not make any too clear that which is confused. With such a record the manifestly simple questions involved must he, if given full consideration, discovered in a maze of unnecessary mаtter. From the last judgment in Alexander’s favor this appeal is brought. The last trial was upon an issue joined, among others, upon appellee Alexander’s third, fourth and sixth paragraрhs of answer. To each of these paragraphs appellant demurred. These demurrers were overruled and appellant has assigned these rulings, and that denying apрellant’s motion for a new trial, as errors for which a reversal is asked.
*672
*671In that part of аppellant’s brief devoted to propositions or *672points as required by clause 5, Rule 22 of the rules of this court, no specific mention is made of any ruling relied on as error еxcept the ruling on the demurrer to the sixth paragraph of answer and the giving of instructions Nos. 2 and 3 which the court gave at the request of appellee Alexander, and the giving of which appellant made cause for a new trial. All other alleged errors, it is well settled, are therefore waived.
Counsel for appellee at the outset present objection to the consideration of any question of error which may be involved in the ruling on the demurrer to the sixth paragraph of answer, for the reason, it is claimed, that the record does not contain the demurrer. The objection is a valid one. The trаnscript shows on page 85 that on March 13, 1911, appellant filed a substituted complaint whiсh is copied into the transcript at that point. This is followed by an entry showing that appеllee, Alexander, “refiles answer in six paragraphs”, which answer is then copied into the transcript on the pages following. There then appears the following entry: “Plaintiff rеfiles demurrers to 3d, 4th, 5th and 6th paragraphs of answer of defendant, (see elsewhere in rеcord, see page 76 of record), Charles W. Alexander, which said demurrers * * * are overruled as to 3d, 4th and 6th paragraphs of answer * * * to which ruling plaintiff excepts. ’ ’ To presеnt for consideration any question on a ruling on demurrer to a pleading the demurrer must be sеt out in the transcript. Jones v. Mayne (1900) , 154 Ind. 400, 55 N. E. 956; Sheeks v. State, ex rel. (1901) , 156 Ind. 508, 60 N. E. 142. No demurrers are set out at this point, but at the page indicated a demurrer- such as stated is found. This demurrer, it appears, was filed to answers to a comрlaint for which the complaint above named was substituted. The judgment now appealed from was rendered on the substituted complaint, the answers to it and the issues thus joined. In such cаse the former pleadings which have been so superseded and the rul*673ings tliereon become oino concern on appeal. It has been held that they are no рroper part of the transcript on appeal. Miles v. Buchanan (1871), 36 Ind. 490; Yancy v. Teter (1872), 39 Ind. 305; Britz v. Johnson (1879), 65 Ind. 561; Trisler v. Trisler (1876), 54 Ind. 172; Indianapolis, etc., R. Co. v. Center Tp. (1895), 143 Ind. 63, 40 N. E. 134; Aydelott v. Collings (1896), 144 Ind. 602, 43 N. E. 867; Barnes v. Pelham (1897), 18 Ind. App. 166, 47 N. E. 648, Scott v. Lafayette Gas Co. (1908), 42 Ind. App. 614, 86 N. E. 495. If the prior pleadings werе not properly in the transcript it is manifest that the identity of the demurrer could not be fixed by rеference to it. It would be different as to a paper or pleading propеrly in the transcript. Binkley v. Forkner (1888), 117 Ind. 176, 19 N. E. 753, 3 L. R. A. 33.
The two instructions of which complaint is made were based on the answers to which objections were made, and with the determination that appellant has not presented any question as to their sufficiency there is a failure to show error in the instructions.
As appellant has not made error to appear in the proceedings which led to the judgment for appellee, Alexander, it is affirmed.