47 Ind. App. 221 | Ind. Ct. App. | 1911
— This was a suit brought by appellant to enforce the collection of three promissory notes given by appellee, and to foreclose a chattel mortgage on a clover huller, a grain separator and an engine, and other chattel property given to secure said notes.
The complaint was in one paragraph, to which appellee filed an answer in denial and a special answer of no consideration. A counterclaim in two paragraphs was filed by appellee, to each of which a demurrer was filed, which was sustained as to the first and overruled as to the second paragraph. At appellant’s request, the trial court made and filed in the case a special finding of facts, with its conclu
Twenty-four errors are assigned as grounds for reversal. Counsel for appellee insist that all errors assigned that are properly assigned as independent errors have been waived by the failure of appellant to set out in its brief that part of the record necessary for the determination of the question raised by such assigned errors.
Errors assigned, numbered from three to sixteen inclusive, are identical with the one before quoted, except that each finding of fact, alleged to be unsupported by the evidence, bears a different number. These several assignments present no question for the consideration of this court. Matters which are causes for a new trial cannot be assigned as independent errors. Leedy v. Capital Nat. Bank (1905), 35 Ind. App. 247; Pfau v. State, ex rel. (1897), 148 Ind. 539; Hunt v. Listenberger (1896), 14 Ind. App. 320; Hedrick v. Hall (1900), 155 Ind. 371.
Counsel for appellee in their brief urge that this assignment has also been waived, for the reason that there has been no compliance with subdivision five of rule twenty-two of this court, which is as follows: “If the insufficiency of the evidence to sustain the verdict or finding, in fact or law, is assigned, the statement shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely.”
Counsel further insist that appellant’s brief nowhere shows the filing of a motion for new trial, or the ruling of the court thereon, and that an enforcement of the rule of this court, according to the precedents heretofore announced by this court and the Supreme Court, must prevent the consideration by this court of this assigned error. Appellant’s brief contains no record entry showing the filing of a motion for a new trial, nor any ruling of the court thereon; nor does it refer to any such record entry. There is, in fact, no
There were eighteen witnesses who testified in the case, and appellant does not, in its brief, mention the name of a single witness, nor attempt to give a condensed statement of the evidence of any witness in narrative form, but only states general conclusions of what it assumes the evidence shows. As before stated, the special finding of facts and conclusions of law are nowhere set out in the brief, so it seems to us that appellant has failed to set out in its brief that part of the record necessary to present the question raised by the error assigned in overruling the motion for a new trial, and it has thereby waived its right to have this error considered. Rule 22 of Supreme and Appellate Courts, subd. 5; Baker v. Gowland, supra.
Judgment affirmed.