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bill of exceptions, held properly in the appeal Under Acts 1903, p. 338, c. 193. the filing record.-Beery v. Driver (Ind. Sup.) 967. of instructions 12 days after trial held not
Under Acts 1903, p. 338, c. 193, held the sufficient to make them a part of the record. evidence was in the record on appeal; the Baker v. Gowland (Ind. App.) 1027. original bill of exceptions containing it having Under Acts 1903, p. 338, c. 193, the record been certified by the clerk.-Brotherhood of on appeal held not to authorize the court to Painters, Decorators and Paperhangers of review alleged error in the instructions.— Baker America v. Moore (Ind. App.) 262.
v. Gowland (Ind. App.) 1027. Under Acts 1903, p. 338, c. 193, $ 3, longhand Where the appeal record does not contain the report of evidence, filed by master commissioner, evidence taken by a master, exceptions dealing held a part of the record without bill of excep- with matters of fact cannot be reviewed. tions.-Harrah v. State (Ind. App.) 443.
Hoshor-Platt Co. v. Miller (Mass.) 650. Under Acts 1903, p. 338, c. 193, certain writ-812. Assignment of errors. ten instructions given and refused held part of the record.—Cincinnati, L. & A. Electric St. a demurrer is not assigned as error, it cannot
*Where the action of the court in overruling R. Co. v. Stahle (Ind. App.) 551.
be reviewed.-Illinois, I. & M. Ry. Co., *A motion not incorporated in the record by Ring (Ill.) 83. bill of exceptions or order of court cannot be
Where, after an appeal had been taken from considered as part of the record.-Lindley v.
a decree in a will contest, but not perfected, Kemp (Ind. App.) 798.
a compromise was effected with certain of the A memorandum, filed by a justice who heard heirs and legatees, but no release of errors was the evidence, which is a report of his findings of pleaded, the record in such compromise profact, held a report within Rev. Laws, c. 159, g ceeding could not be considered on a subsequent 23.-Cohen v. Nagle (Mass.) 276.
writ of error to review the contest decree
Compher v. Browning (Ill.) 678. § 10. Making, form, and requisites *An assignment of errors must be attached
of transcript or return. Præcipe held sufficient to authorize clerk to L. R. Co. (11.) 833.
to the record.—McCormick v. Chicago & S. incorporate in transcript the bill of exceptions containing the evidence.—New American Oil & *Coplaintiffs cannot properly join in assigning Mining Co. v. Troyer (Ind. Sup.) 233; Same v. errors to the overruling of demurrers to paraWolff (Ind. Sup.) 255.
graphs of the answer which affect them severA clerk's certificate to a transcript held to
ally.--Starkey v. Starkey (Ind. Sup.) 876. authenticate one or 'voth of the paragraphs
*Where errors jointly assigned were not availof the complaint, enabling the court on appeal able to one of the parties joining in such assignto determine the sufficiency of the evidence to ment, they were unavailable to the other.-Staruphold the verdict.-Chicago, I. & L. Ry. Co. kėy v. Starkey (Ind. Sup.) 876. v. Reyman (Ind. Sup.) 970.
On appeal in eminent domain proceedings held * Appellate Court Rule 3 (55 N. E. iv), re
that the assignments of error were insufficient, quiring the transcript to be indexed," held' not under Burns' Ann. St. 1901, § 667, to warrant complied with, requiring a dismissal of the ap- review of a statement of appropriation.-Stoy peal.—McCormick Harvesting Mach. Co. y.
v. Indiana Hydraulic Power Co. (Ind. Sup.) Hinchman (Ind. App.) 327.
1057. Præcipe for transcript and certificate of clerk substance, the defect is not waived by joinder
Where assignments of error are deficient in held to sufficiently show the incorporation of in error. -Spitzer v. Wright (Ind. App.) 261. interrogatories and answers of the jury in the transcript (Burns' Ann. St. 1901, 8 555).—Lind *An assignment of errors that the court comley v. Kemp (Ind. App.) 798.
mitted error in sustaining a demurrer of one of
the defendants, and in rendering judgment $11. Questions presented for re- against appellants upon their refusal to plead view.
fatally defective.-Spitzer Refusal of the trial court to permit certain Wright (Ind. App.) 261. questions to be asked jurors held not ground for reversal where the abstract did not contain of the answer should have been carried back
*A contention that a demurrer to a paragraph all the questions asked.—Heiple v. City of and sustained to the complaint will not be reWashington (I11.) 854.
viewed in the absence of an assignment that Alleged error predicated on instructions, not the court's failure so to do was error.-McAfee set out in defendant's brief, as required by v. Bending (Ind. App.) 412, Sup. Ct. Rule 22 (55 N. E. vi), will be con * Joint assignments of errors by appellants as sidered waived.-Springer v. Bricker (Ind. to whom different judgments were rendered held Sup.) 114.
to present nothing for review.-Stemen v. Koud. The absence from the record of a plat which son-Mercer Lumber Co. (Ind. App.) 812. is not essential to the understanding of the $13. Briefs. situation will not prevent the consideration of
*Points relied upon for reversal cannot be questions dependent on the presence of the evi- urged for the first time in the reply brief.-Har dence in the record.—Cincinnati, L. & A. Elec- row y. Grogan (Ill.) 350. tric St. R. Co. v. Stahle (Ind. App.) 551.
An assignment that the court erred in or *The Court of Appeals must consider the ruling a demurrer to certain paragraphs of the complaint as it appears in the record, and with complaint held waived by defendant's failure out regard to motions to strike, and rulings to set out such paragraphs in his brief, or gire thereon which are not disclosed by the record.— a substantial statement of the facts therein Lindley v. Kemp (Ind. App.) 798.
alleged, as required by Sup. Ct. Rule 22. d. The denial of a venire de novo will not be 5 (55 N E. vi).-Springer v. Bricker (Ind. reviewed on appeal unless the record shows the Sup.) 114. ground on which it was based, and that it was A brief merely alleging that paragraphs of pointed out to the trial court.-Douglas v. In the complaint to which it was claimed a dedianapolis & N. W. Traction Co. (Ind. App.) murrer was erroneously overruled failed to al 892,
lege a particular fact held insufficient to present * Point annotated. See syllabus.
the error relied on, as required by Şup. Ct. of fact on which the judgment of the Appellate Rule 22, cl. 5 (55 N. E. vi).-Špringer v. Court is conclusive.-Chicago & J. Electric Ry. Bricker (Ind. Sup.) 114.
Co. v. Patton (Ill.) 381. *Statement and points in brief under an A ruling on demurrer to the complaint will assignment of error held not to satisfy Sup. Ct. not be reviewed where the same question was Rule 22 (55 N. E. vi). -American Food Co. v. presented by an exception to the court's con. Halstead (Ind. Sup.) 251.
clusion of law based on a special finding of *Alleged errors in overruling a motion for a
facts.-Board of Com'rs of Laporte County v. new trial arising on instructions given by the
Wolff (Ind. Sup.) 247. court of its own motion were not presented for The report of a commissioner appointed by the review where the brief on appeal did not show court to take and report the evidence cannot be where in the record the instructions might be treated as a special finding of fact, and made found, nor set out the substance or a copy of subject to exceptions as such.-Harrah v. State the instructions.-Capital Nat. Bank v. Wilker- (Ind. App.) 443. son (Ind. App.) 258.
Under Burns' Ann. St. 1901, 88 401, 670, a Rule 22 (55 N. E. v), relating to the recital judgment for plaintiff held to be sustained, of the evidence in the brief, cannot be invoked though the court erred as to theory on which it where the brief sufficiently conforms to the rule was based. — Princeton Coal & Mining Co. v. to enable the court to comprehend the proposi- Gilmore (Ind. App.) 787. tion relied on.-Hall v. Terre Haute Electric
Where a case is submitted on an agreed stateCo. (Ind. App.) 334.
ment of facts, the only question of law on ap* Appellant is not entitled to a reversal of a peal is whether there is any evidence which judgment as of right for appellee's failure to warrants the finding.–Smith v. City of Lowell file a brief.-McAfee v. Bending (Ind. App.) (Mass.) 956. 412.
$ 17. On the failure of appellant in his brief to re
Parties entitled to allege error. cite the evidence, as required by Appellate Court dence obtains a ruling that certain memoranda
A party who on introducing a paper in eviRule 22 (55 N. E. v), the question of the suffi, should be excluded should erase such memoranciency of the
evidence to support a finding held da.-Warth v. L. Loewenstein & Sons (Ill.) 379. not reviewable.-Hartzell v. Hartzell (Ind. App.) 439.
*A case within the rule that one on whose obAppellant's brief held to sufficiently set out jection competent testimony to prove a fact is the complaint and demurrer thereto to entitle excluded cannot afterwards assert that the fact is appellant to a review of an order overruling not proved held shown by the facts.-Spaulding such demurrer.—Hay v. Bash (Ind. App.) 644.
v. Mott (Ind. Sup.) 620. Appellant's brief held to sufficiently contain
*In proceedings under Acts 1903, p. 255, c. the averments of defendant's cross-complaint to 145, to improve a highway, a party held not enentitle appellant to a review of the sufficiency titled to complain that a finding that the widenthereof on appeal.- Nichols & Shepard Co. v. ing of the highway was necessary was unsupBerning (Ind. App.) 776.
ported where the court on his objection excluded Appellate Court Rule 22 (55 N. E. v), requir- Sup.) 620.
competent evidence.-Spaulding v. Mott (Ind. ing a statement in appellant's brief of so much of the record as fully presents the error relied $ 18. A mendments, additional on, held not satisfied.-- Ledbetter v. Coggeshall
proofs, and trial of cause anew. (Ind. App.) 787.
On hearing on report an amendment changing
the action from law into equity cannot be Under the rule providing that, if the insuffi- permitted, where by the terms of the report ciency of the evidence is assigned as error, such privilege has not been reserved.-Mee v. appellant's brief shall contain a condensed re- Fay (Mass.) 229. cital of the evidence in narrative form, a statement of conclusions of counsel as to what the Where the report states that if it becomes evidence shows is not sufficient.— Baker v. Gow- necessary plaintiff may amend by substituting land (Ind. App.) 1027.
his wards, by whom alone the action can be
maintained, the case will be treated as baving $14. Dismissal, withdrawal, aban- been properly amended.—Mee v. Fay (Mass.) donment.
229. Defendant in error, after joining issue and failing to interpose any special plea, cannot, by 8 19. Presumptions. moving to dismiss, procure a trial of the ques
Where a ruling indicated a radically wrong tion of fact as to the corporate existence of theory concerning the rights of the parties, it plaintiff in error.–Kanawha Dispatch v. Fish would be presumed, on appeal, in the absence (Ill.) 352.
of a contrary showing, that such theory was
adhered to and resulted in prejudice.-Boonville An appellee held not to have waived his right Nat. Bank v. Blakey (Ind. Sup.) 529. to have the appeal dismissed.-Hayes v. Locus (Ind. App.) 649.
8 20. Discretion of lower court. *The appellate court must take notice of its
*A broad discretion is vested with the chanwant of jurisdiction of a cause appealed to it.-cellor in the matter of approving or disapprov. Yakey v. Leich (Ind. App.) 926.
ing the acts of a master in chancery with
reference to judicial sales, and such discre815. Hearing and rehearing.
tion will not, unless abused, be interfered with * Appellants held not entitled to order direct-on appeal.-Slack v. Cooper (Ill.) 84. ing clerk of circuit court to certify transcript Under Hurd's Rev. St. 1897, c. 33, 88 23, 10, of proceedings on motion for new trial as of the Appellate Court has power to assess damright, to supplement original record on appeal. ages where an appeal is prosecuted for delay,
Ætna Life Ins. Co. v. Stryker (Ind. App.) and the exercise of this power will not be re822.
viewed in the absence of any showing that it $16. Review Scope and extent in gen-is Chimney Const. Co. (111.) 850.
has been abused.—McCarthy v. Alphons Custoderal. In an action for personal injuries, question The extent to which cross-examination may whether the verdict is excessive is a question 'go is left largely to the discretion of the trial
* Point annotated. See syllabus.
court, and the Appellate Court will only inter- / verdict may rest.—Pittsburgh, C., C. & St L. fere where an abuse of such discretion is shown. Ry. Co. v. Simons (Ind. App.) 883. -Swygart v. Willard (Ind. Sup.) 755.
The findings of fact stated in the report of the *An order granting a temporary injunction justice who heard the evidence on a trial made will not be disturbed on appeal in the absence pursuant to Rev. Laws, c. 159, $ 23, whether of a showing of a clear abuse of discretion in made voluntarily, or on the request of appellant, the granting of the same.-City of Laporte v. will not be set aside unless they are plainly Scott (Ind. Sup.) 878.
wrong.--Cohen v. Nagle (Mass.) 276. *An order denying a new trial will only be 8 22. Harmless error in general. disturbed on appeal when the evidence is docu
In an action to recover on a building contract, mentary, by deposition, or otherwise of such a certain remarks of the court held not prejudiclear and conclusive character as to show as a cial.-Fitzgerald v. Benner (Ill.) 709. matter of law that the decision is erroneous. Nichols & Shepard Co. v. Berning (Ind. App.) verdict should have been either more or less
*One held not entitled to complain that the 776.
favorable.-American Food Co. v. Halstead $ 21. Questions of fact, verdicts, and (Ind. Sup.) 251. findings.
The giving of inaccurate instructions held *Verdict in condemnation proceedings will harmless; it clearly appearing from the evidence not be set aside if within the range of con- that the verdict was the only one that could flicting evidence.—Illinois, I. & M. Rý. Co. v. have been returned. - Pittsburgh, C., C. & St. L. Ring (Ill.) 83.
Ry. Co. v. Higgs (Ind. Sup.) 299. Where, in a will contest, there is evidence *Where a material error was committed by that testatrix was not unduly influenced, as the trial court, it will be presumed on appeal. alleged, in executing the will, a verdict in sup- in the absence of a clear showing to the conport of the will on such issue will not be dis- trary, that the judgment was in some degree the turbed on appeal.-Compher v. Browning (111.) product of such error.-Lake Erie & W. R. Co. 678.
v. McFall (Ind. Sup.) 400. A verdict in support of a will, on an issue of
A judgment for plaintiff not shown to rest undue influence, which has been sustained by entirely on a good paragraph of the complaint. the trial court, will not be reversed on error as distinguished from one to which a demurrer unless clearly against the weight of the evi- was erroneously overruled, cannot stand.-- Lake dence.--Compher v. Browning (111.) 678. Shore & M. S. Ry. Co. v. Barnes (Ind. Sup.)
Where defendant is awarded no relief on 629. his cross-complaint, rulings as to that plead *The error in giving or refusing instructions ing cannot be complained of on plaintiff's ap- held not ground for reversal where the anpeal.—Baum v. Palmer (Ind. Sup.) 108.
swers to the interrogatories show that the com*The sufficiency of the evidence in a jury case plaining party was not harmed thereby.-Munheld not to be reviewed on appeal, unless it is cie Pulp Co. v. Hacker (Ind. App.) 770. presented as a question of law.--American One enjoined from using a name as a tradeFood Co. v. Halstead (Ind. Sup.) 251.
name held not entitled to complain that the in*Where a verdict is fully sustained by the junction did not give plaintiff full remedy.—Coevidence, it will not be disturbed on the ground hen v. Nagle (Mass.) 276. of insufficient evidence.-Pittsburgh, C., C. & St. L. Ry. Co. v. Nicholas (Ind. Sup.) 522.
Harmless error in rulings as to
pleading. The verdict of a jury cannot be disturbed on *A judgment in favor of plaintiff will be rethe weight of the evidence.-Swygart v. Wil versed for error in overruling a demurrer to a lard (Ind. sup.) 755.
defective paragraph of the complaint, unless the The Supreme Court cannot reverse a judgment verdict or findings exclusively rest on the good on the weight of the evidence.—Beery v. Ďriver paragraphs.-Lake Erie & W. R, Co. v. McFall (Ind. Sup.) 967.
(Ind. Sup.) 400. *Where there is evidence in the record sustain *There is no error in sustaining a demurrer ing the verdict of the jury, the judgment will to a paragraph of an answer where all the erinot be disturbed on appeal. -Capital Nat. Bank dence admissible under it was admissible under v. Wilkerson (Ind. App.) 258.
the general denial. - City of Valparaiso F. *A finding sustained by some evidence is con
Spaeth (Ind. Sup.) 514. clusive on appeal.-Williams v. Hoffman (Ind.
*Withdrawal of a paragraph of the answer App.) 440.
after the overruling of a demurrer thereto held *In an action on a surviving partner's bond to render such ruling without prejudice to plainas administrator of the deceased partner, a de- tiff.-Starkey v. Starkey (Ind. Sup.) 876. cision which utterly disregards administration In a suit to enforce a mechanic's lien, the proceedings in the probate court is contrary to sustaining of a demurrer to a paragraph of the law.-Harrah v. State (Ind. App.) 443,
reply, denying a consideration for a bond alleged Where there is 'evidence in the record to sup- Miller v. Taggart (Ind. App.) 321.
in the answer, held not an available error.port each of the several specific findings made by the court, a judgment based thereon will not The Appellate Court, in order to determine be reversed as not sustained by sufficient evi- whether the sustaining of a demurrer to a para: dence.—Case v. Collins (Ind. App.) 781,
graph of the answer was injurious, will limit *The Appellate Court will not weigh the evi- its inquiry to the question whether evidence dence.- New York, C. & St. L. R. Co. o. Rob-I tending to support such paragraph was admissibins (Ind. App.) 804.
ble under other paragraphs.-McAfee . Bend
ing (Ind. App.) 412. The decision of the trial court on conflicting evidence will not be disturbed.—Over v. Dehne of a demurrer to the answer by a husband joint
Plaintiff held not harmed by the overruling (Ind. App.) 883.
ly sued with his wife in an action on the note, * Denial of a motion for a new trial for insuffi- for want of facts sufficient to constitute a deciency of the evidence will be sustained where fense as to him.-Equitable Trust Co. v. Torphy there is any competent evidence on which the (Ind. App.) 639.
* Point annotated. See syllabus.
In an action on a note against husband and I -Roberts v. Terre Haute Electric Co. (Ind. wife, plaintiff, having recovered judgment for a App.) 895. part of his demand against the wife, held not
On an issue of fraud in a sale of certain goods, entitled to object on appeal that under the wife's the exclusion of the records of judgments obanswer there could be no partial recovery.Equitable Trust Co. v. Torphy (Ind. App.) 839. tained by two of the seller's creditors held harm
less.—Hart v. Brierley (Mass.) 286. *The sustaining of a demurrer to a paragraph
$ 25. of an answer is harmless error where the facts
Harmless error in instructions
to jury. alleged therein are provable under the general
The use of the word "defendant" in place denial.—Shetterly v. Axt (Ind. App.) 901.
of “plaintiff" in an instruction held harmless Error in sustaining a demurrer to a para- in view of other instructions.-National Enamgraph of the complaint cannot be regarded as eling & Stamping Co. v. McCorkle (Ill.) 843. harmless on the ground that the same questions are presented by exceptions to the con rogatories found against plaintiff on her reply
Where the jury by answer to special interclusions of law.—Warner V. Jennings (Ind. of estoppel, failure to refer to that issue in App.) 1013.
certain instructions was harmless.-Baum v. $ 24. Harmless error in rulings as Palmer (Ind. Sup.) 108. to evidence.
Where there is no evidence of contributory neg. Evidence of a matter of which the court takes ligence, defendant cannot complain of erroneous judicial notice is harmless.—Wabash R. Co. v. instructions relative to contributory negligence. Campbell (III.) 346.
--Pittsburgh, C., C. & St. L. Ry. Co. v. Higgs *Refusal to strike out answer held harmless (Ind. Sup.) 299. error, where there is competent evidence to the In an action by a servant for injury, held same effect.—Chicago & J. Electric Ry. Co. v. that an instruction that defendant had the Patton (III.) 381.
burden of showing assumption of risk, if erWhere an action is tried to the court without roneous. was harmless.- Pittsburgh, C., C. & a jury permitting a witness to testify to a St. L. Ry. Co. v. Nicholas (Ind. Sup.) 522. conclusion, held not prejudicial error. — Illinois Steel Co. v. Preble Mach. Works Co. (I11.) 574.ceived by an operator of an emery wheel held
An instruction in an action for injuries reIn an action to recover a balance due on a not prejudicial to the master.-Muncie Pulp building contract, the admission of certain evi- Co. v. Hacker (Ind. App.) 770. dence, even though constituting a conclusion of
That appellee was the only witness having the witness, held harmless.-Fitzgerald v. Ben- pecuniary interest in result of suit held not ner (III.) 709.
to render harmless instruction relating to crediIn an action for the price of certain jewelry bility of witness interested in result of suit. sold the admission in evidence of a receipt and Muncie, H. & Ft. W. Ry. Co. v. Ladd (Ind. certificate relating to jewelry purchased by App.) 790. plaintiff held without prejudice.—Brown v. Refusal to give a charge in an action on a White (III.) 833.
policy insuring a building against loss by fire *There was no reversible error committed by and lightning held not prejudicial in view of the admitting evidence out of its logical order. findings.-Home Ins. Co. v. Gagen (Ind. App.)
927. Pittsburgh, C., C. & St. L. Ry. Co. v. Nicholas (Ind. Sup.) 522.
$ 26. Error waived in appellate On the issue of mental capacity of a testator,
court. the action of the court in permitting certain An assignment of error not argued on appeal expressions used by witnesses to stand held not is waived.- Western Union Telegraph Co. v. prejudicial error.-Swygart v. Willard (Ind. State (Ind. Sup.) 100. Sup.) 755.
* Assignments of error, not presented in any *On the issue of mental capacity of a testator, manner, supported or discussed in appellant's the refusal to strike out an answer of a medical brief, will be treated as waived.-Starkey v. expert witness to a preliminary question held Starkey (Ind. Sup.) 876. harmless.-Swygart v. Willard (Ind. Sup.) 755.
*A party waives causes assigned in his motion On the issue of mental capacity of a testator, for a new trial by failing to refer thereto in the admission of certain testimony of a non- his brief on appeal.-Capital Nat. Bank V. expert witness held harmless error.-Swygart Wilkerson (Ind. App.) 258. v. Willard (Ind. Sup.) 755.
*Failure to discuss on appeal a question pre*The erroneous exclusion of evidence in no sented to the sufficiency of a pleading wise prejudicial to the rights of a party is not operates as a waiver of the objection.-Metroreversible error.-Metropolitan Life Ins. Co. v. politan Life Ins. Co. v. Willis (Ind. App.) 560. Willis (Ind. App.) 560. In an action for personal injuries, where the held waived.--Indianapolis & M. Rapid Transit
*Ground for a new trial not argued on appeal defendant's liability was admitted, and no ques. Co. v. Reeder (Ind. App.) 816. tion as to the recovery was presented on appeal, any error in rulings on evidence would Where an exception is not argued on appeal, not justify a reversal.— Indianapolis & M. Rapid it will be considered waived.-American Woolen Transit Co. v. Reeder (Ind. App.) 816.
Co. v. Boston & M. R. Co. (Mass.) 658. In an action for injuries to a child while 8 27. Decisions of intermediate crossing defendant's railroad track, defendant
courts. held not prejudiced by evidence that he could A finding by the trial court and the Appellate have crossed in safety if he had not caught his Court on a question of fact is conclusive upon foot in a switch.--Pittsburgh, C., C. & St. L. the Supreme Court, if based on competent Ry. Co. v. Simons (Ind. App.) 883.
evidence.-Illinois Steel Co. v. Preble Mach. In the absence of evidence of defendant's neg
Works Co. (11.) 574. ligence, the exclusion of evidence illustrating A determination of the Appellate Court that the care exercised by plaintiff would not au- the finding of the superior court is not against thorize the reversal of a judgment for defendant. 'the weight of the evidence, cannot be reviewed
* Point annotated. See syllabus.
by the Supreme Court.-Brown v. White (Ill.) | ed by it by the appellate court, held to have
jurisdiction to proceed to assess damages on the
cuit court after the dissolution of an injunction
Error in the overruling of a demurrer for mis-
appeal, as provided by Burns' Ann. St. 1901,
A judgment will not be reversed for failure
to assess nominal damages in favor of appellant.
-Green v. Macy (Ind. App.) 264.
ings.-Zuelly v. Casper (Ind. App.) 646.
mour v. Colcord (N. Y.) 273.
1903, c. 32, 88 676-67d, held insufficient.-Me-
Custodis Chimney Const. Co. (II.) 850.
In condemnation proceedings, see "Eminent Do-
main," $ 3.
and Servant," 88 46.
For insurance, see "Insurance," $ 2.
88 1, 2.
tions," $ 2.
"Municipal Corporations," $ 8.
use, see “Eminent Domain," $ 2.
* Point annotated. See syllabas.