Opinion
No. 11,793.
Filed April 29, 1925.
1. APPEAL. — Question as to amount of recovery not presented unless evidence is set out in appellant's brief. — No question as to amount of recovery is presented on appeal when the appellant has not set out a statement of the evidence in his brief, as the correctness of the action of the court depends on the evidence. p. 52.
2. APPEAL. — Conclusion of law not reviewed when no exception thereto. — The correctness of a conclusion of law will not be reviewed on appeal when no exception was taken to such conclusion. p. 53.
From Marion Superior Court (A 15,392); Clinton H. Givan, Judge.
Action by Ellis Brothers, a corporation, against the Lake Erie and Western Railroad Company. From a judgment for plaintiff for unsatisfactory amount, it appeals. Affirmed. By the court in banc.
Clarence W. Nichols, for appellant.
Samuel D. Miller, Frank C. Dailey, William H. Thompson, Albert L. Rabb, Thomas D. Stevenson and Perry E. O'Neal, for appellee.
Complaint by appellant to recover damages for the loss of coal from certain carload shipments. The cause was tried by the court and the facts found specially. The court concluded as a matter of law that appellant was entitled to recover $126.29, and a judgment was rendered accordingly. The errors assigned are that the court erred in overruling the motion for a new trial, and in the conclusion of law.
The first and only contention relating to the action of the court in overruling the motion for a new trial is that the amount of the recovery is too small. This contention is based upon 1. the theory that the uncontradicted evidence shows appellant was entitled to recover $182.20, instead of $126.29, as stated in the conclusion of law. Appellee has called attention to the fact that appellant in its brief has not set out a statement of the evidence as required by the rules of this court. Appellee has refrained from supplying this defect and appellant has made no move to amend its brief so as to comply with the rules. In accordance with repeated decisions of the Supreme Court, by which we are bound, we hold no question relative to the overruling of the motion for a new trial is presented, as the action of the court in that behalf depends on the evidence. See Rose v. City of Jeffersonville (1916), 185 Ind. 577; Cleveland, etc., R. Co. v. Bowen (1913), 179 Ind. 142; Leedy v. Idle, Trustee (1918), 69 Ind. App. 105; Pittsburgh, etc., R. Co. v. Retz (1919), 71 Ind. App. 581.
No exception having been taken to the conclusion of law, 2. no question is presented under the second assignment of error.
Judgment affirmed.