Opinion
No. 14,634.
Filed December 8, 1932.
1. APPEALS — Appellant's Brief — Concise Statement of Evidence — Must Refer to Page and Line of Record. — A concise statement of the evidence in appellant's brief that does not refer to the page and line of the transcript where the same may be found, presents no question as to the evidence on appeal. p. 265.
2. APPEALS — Appellant's Brief — Instructions — Must Be Set Out in Statement of Record to Present Error. — If the instructions given are not set out in appellant's brief in his statement of the record no question as to the instructions is presented on appeal. p. 265.
3. APPEALS — Appellant's Brief — Abstract Points Not Directed to Any Error Relied on — Present no Question. — Abstract points, which are not directed to any particular error relied on for reversal, presents no question on appeal. p. 265.
4. APPEALS — Appellant's Brief — Instructions Recited in "Argument" — Not Sufficient to Present Error. — Where the instructions are recited in that portion of appellant's brief entitled "argument," but are not in the statement of the record, such a recital will not be sufficient to present error as to such instructions. p. 265.
From Lake Superior Court; Virgil S. Reiter, Judge.
Action by Walter Gainski, by Mary Gainski, his next friend, against Walter Bialka. From a judgment for defendant, plaintiff appealed. Affirmed. By the court in banc.
D.P. Sevald, for appellant.
This action was instituted by Walter Gainski, a minor, against Walter Bialka, a minor. The complaint in one paragraph alleged that defendant (appellee herein) committed an assault and battery upon plaintiff (appellant herein), inflicting an injury. The guardian ad litem and appellee presented a demurrer to the complaint which was overruled. The guardian ad litem filed answers in two paragraphs: (1) General denial; (2) special answers. Appellant filed reply in general denial to the second paragraph of answer. Trial by jury, and verdict for defendant. Motion for new trial was overruled, hence this appeal. Errors assigned: (1) Verdict is not sustained by sufficient evidence; (2) verdict contrary to law; and (3) separate error in the refusal of the court to give each of the requested instructions tendered by appellant and separate error of the court in giving each of the instructions tendered by appellee as modified by the court.
An examination of appellant's brief discloses that he has not complied with the fifth division of Rule 22 of the Supreme and Appellate Court in that: (1) He has given what purports 1-4. to be a concise statement of the evidence, but nowhere refers to the pages and the line of the transcript where the same may be found; (2) error is attempted to be predicated in the giving and the refusal to give certain instructions but the statement of the record wholly fails to recite the instructions given; (3) the points are abstract and are not directed to any error relied upon for reversal. An examination of that portion of appellant's brief entitled "argument" discloses that what purports to be instructions given and refused are recited, but that will not be sufficient to present the question. Del-Mar Garage, Inc., v. Boden (1932), post 317, 179 N.E. 729; Howenstein v. Sellars (1932), ante 150, 181 N.E. 46. It necessarily follows that no question is presented.
Judgment affirmed.