Steel v. Yoder

58 Ind. App. 633 | Ind. Ct. App. | 1915

Hottel, C. J.

Appellants have filed their motion to amend their assignment of errors and in connection thei'ewith also file a request to amend their original brief.

1. We will first consider the motion to amend the assignment of errors. The error assigned which is sought to be amended is the fifth, and is as follows: “The court erred in the conclusions of law stated upon the special finding of facts.” It is sought to amend this assignment so as to make it challenge each conclusion of law. The judgment from which this appeal was taken was rendered June 15, 1912. The transcript and assignment of errors were filed in this court May 19, 1913. The law fixing the time of appeal, in force when this appeal was perfected, was §672 Burns 1908, §633 E. S. 1881, which required that an appeal must be perfected within one year from the time of the rendition of the judgment below. Brady v. Garrison (1912), 178 Ind. 459, 460, 99 N. E. 738; Pope v. Voigt (1912), 49 Ind. App. 176, 178, 96 N. E. 984; Huber v. Teilking (1914), 55 Ind. App. 577, 103 N. E. 853, 104 N. E. 314; Shay v. Horn (1914), 57 Ind. App. 116, 106 N. E. 544. The assignment of errors serves the office of the complaint in' this court, and its filing is an essential element to the perfecting of an appeal. Chicago, etc., R. Co. v. Walton (1905), 165 Ind. 642, 644, 74 N. E. 988; Town of Windfall City v. State, ex rel. (1910), 174 Ind. 311, 313, 92 N. E. 57; Brown v. Brown (1907), 168 Ind. 654, 655, 656, 80 N. E. 535; Thompson v. Newsom (1913), 52 Ind. App. 444, 447, 100 N. E. 772; Pope v. Voigt, supra. The only reason or excuse offered in the motion for such amendment asked is, that of “inadvertence and mistake of counsel when they wrote such assignment”. It is questionable whether such an excuse would justify the court in permitting the amendment, even if seasonably made (Rule 4, Supreme and Appellate Courts; Loucheim v. Seeley [1896], 151 Ind. 665, 666, 667, 43 N. E. 646), but it will, in no event, warrant the court in permitting the amendment after the time for appeal has expired. Huber v. Teilking, supra; Pope v. Voigt, supra; Bacon v. Withrow (1887), 110 Ind. 94, 10 N. E. 624; Lawrence v. Wood (1890), 122 Ind. 452, 24 N. E. 159; Smythe v. Boswell (1889), 117 Ind. 365, 20 N. E. 263. See also cases cited, supra.

2. We next inquire whether the amendment of appellants’ brief should be permitted. Appellants seek to insert in their briefs, “at the proper places copies of the original pleadings and of the finding of facts and conclusions of law”. The appellants may, as a matter of course, file amended briefs before the time for filing such briefs has expired, and it has been the rule of this court, upon proper showing, to permit such amendment even after such time has expired, provided, the application for such amendment is made before the year has expired for the perfecting of the appeal,' but where the application is made after the year it has been refused, except in cases where the excuse or reason for the necessity for the amendment resulted from the acts or conduct of the appellee, or from some cause for which the appellant was in no way to blame. Where, as in this ease, the time for perfecting the appeal and for the filing of briefs have both expired, a showing of a mistake or oversight on appellants’ part in the matter of the preparation of their briefs will not alone entitle them to amend. It follows that appellants’ application in this case must be refused.

3. 4. Our disposition of this motion and application disposes of the appeal. This is so, because the first, second and third errors assigned are expressly waived by appellant. The fourth, error assigned questions the ruling on a demurrer to appellee’s “answer or cross-complaint” which is not set out in the brief and hence no question is presented by such assignment. City of Valparaiso v. Chester (1911), 176 Ind. 636, 640, 96 N. E. 765. The fifth error assigned challenges the conclusions of law in toto, and presents no question both for the reason that the finding is not set out in the brief (Town of Jasper v. Cassidy [1913], 53 Ind. App. 678, 102 N. E. 278), and for the further reason that the first conclusion of law is in appellants’ favor and is not questioned by them. Where the error assigned challenges the conclusions of law in gross, if either conclusion is correct, such assigned error will be of no avail. School Town, etc. v. Maumee School Tp. (1901), 28 Ind. App. 120, 62 N. E. 282; Jones v. Mayne (1900), 154 Ind. 400, 402, 55 N. E. 956; Saunders v. Montgomery (1895), 143 Ind. 185, 41 N. E. 453.

5. 6. 7. The sixth and seventh errors assigned respectively challenge the ruling of the court on a motion to modify and restate its second and third conclusions of law. Even if appellants’ brief contained enough of the record necessary to present such question, error predicated on such ruling is not available because such motion is not recognized by our practice. See Starkey v. Starkey (1894), 136 Ind. 349, 351, 36 N. E. 287; Nading v. Elliott (1894), 137 Ind. 261, 265, 36 N. E. 695. The eighth assignment of error challenges the ruling on the motion for new trial and presents no question because the evidence is not in the record and appellants’ brief does not contain enough of the record to> determine any questions presented by such motion. We might add, that appellants concede in their brief that by this assignment of error they desire to raise but one question for the decision of the court, viz., “Did the 'court below err in its second conclusion of law, and in rendering so much of the judgment of the court as is founded upon said second conclusion of law.” Such question is not presented, fey a motion for new trial. Starkey v. Starkey, supra; Nading v. Elliott, supra; Bundy v. McClarnon (1889), 118 Ind. 165, 20 N. E. 718; Elliott, App. Proc. §793.

8. Appellants’ ninth, assigned error challenges the action of the court in overruling its separate and several motions to modify the judgment. The judgment follows and conforms to the conclusions of law and hence no error can he predicated on such motion. See School Town, etc. v. Maumee School Tp., supra; Jones v. Mayne, supra; Anglemyer v. Board, etc. (1899), 153 Ind. 217, 54 N. E. 803. There feeing no question presented the appeal is dismissed.

Note.—Reported in 108 N.. E. 783. See, also, under (1) 2 Cyc. 1005, 980; (2) 2 Cyc. 1019; 2 Cyc. 1913 Anno. 1019-new; (3) 2 Cyc. 1014; (4) 2 Cyc. 1014, 995; (5) 2 Cyc. 995; 38 Cyc. 1987; (6) 3 Cyc. 175; 2 Cyc. 1014; (7) 2 Cyc. 1000.