Opinion
No. 1269A252.
Filed October 7, 1970.
1. PROCEDURE — Appeal — Failure of Appellee to File an Answer Brief. — Where the record does not disclose that an appellee filed an answer brief it is only necessary for the appellant to demonstrate a prima facie case of reversible error. p. 547.
2. APPEAL — Sufficient Evidence to Sustain the Verdict of the Jury. — The rule followed by the Appellate Court in this case in considering the sufficiency of the evidence to sustain the finding of the court is that a fragment, part or portion of the evidence is not plucked from the whole and appraised alone, but all the evidence, together with all the permissible and reasonable inferences deductible therefrom, is surveyed to determine the ultimate facts and circumstances established thereby favorable to the decision of the trial court. A reversal of a judgment predicated upon a finding results only where there exists no competent evidence to support such finding. p. 548.
3. APPEAL — Evidence to Support Contentions on Appeal. — All reasonable presumptions are indulged on appeal in favor of the rulings and judgment of the trial court. The record must exhibit the errors for which the reversal is sought. A court of appeals will not presume anything in favor of appellant to sustain his alleged error. p. 549.
From the Hancock Circuit Court, George B. Davis, Judge.
Plaintiff-appellee filed a complaint for damages against defendants-appellants alleging indebtedness for work done on appellants' property. Jury verdict rendered for plaintiff-appellee. Appellant filed a motion for new trial which was denied. Appellants' sole assignment of error is the overruling of the motion for new trial.
Affirmed by the First Division.
Bob Good, of Shelbyville, for appellant.
Kitley, Schreckengast Davis, of Beech Grove, for appellee.
This cause of action originated in the Shelby Circuit Court, but was later transferred to the Hancock Circuit Court on a change of venue. Plaintiff-appellee filed a complaint for damages against defendants-appellants alleging that appellants are indebted to appellee in the sum of $851.07 for work done on appellant-Good's property. Trial was to a jury which rendered a verdict for plaintiff-appellee, and appellant-Good filed motion for new trial which, in pertinent part, reads as follows:
"(1) The verdict of the jury is not sustained by sufficient evidence.
"(2) Error of law occurring at the trial, in that:
(a) The court erred in refusing to give the defendant's tendered Instruction No. 1.
(b) The Court erred in giving, over the objection of the defendant, plaintiff's tendered Instruction No. 2.
(c) The Court erred in giving, over the objection of the defendant, plaintiff's tendered Instruction No. 3."
Appellant-Good's sole assignment of error is the overruling of the motion for new trial.
We should note here that the record does not disclose that plaintiff-appellee filed an answer brief, and under these circumstances "it is only necessary for the appellant to 1. demonstrate a prima facie case of reversible error." Kuykendall v. County Com'rs. of Marion Co. (1968), 142 Ind. App. 363, 13 Ind. Dec. 405, 234 N.E.2d 860, 861.
VERDICT OF JURY SUSTAINED BY SUFFICIENT EVIDENCE
This court, in reviewing appellant-Good's specification of error that the verdict of the jury is not sustained by sufficient evidence, will follow the rule laid down in Kessler v. Kessler (1963), 135 Ind. App. 85, at 90, 192 N.E.2d 4, at 6, quoting from Heckman v. Heckman (1956), 235 Ind. 472, at 478-479, 134 N.E.2d 695:
"`In considering the sufficiency of the evidence to sustain the finding of the court, a fragment, part or portion of the evidence is not plucked from the 2. whole and appraised alone, but all the evidence, together with all the permissible and reasonable inferences deductible therefrom, is surveyed to determine the ultimate facts and circumstances established thereby favorable to the decision of the trial court. A reversal of a judgment predicated upon a finding results only when there exists no competent evidence to support such finding. . . .'" (Emphasis supplied.)
The evidence in the record before us shows that appellee is the owner of Nasby Construction Service and was contracted by Robert Glidden, agent of appellant-Good, to do certain excavating and construction work on a new home being built by appellant-Good, and that appellee completed this work and was partially paid therefor, and that appellant-Good refused to pay the balance due and unpaid.
The evidence above constitutes an order by the agent which was ratified by appellant-Good, and accepted and fully performed by appellee-Nasby. Thus, it appears that sufficient evidence of probative value existed to sustain the verdict of the jury.
ERROR OF LAW OCCURRING AT THE TRIAL
This specification of error presents no question for this court. Appellant-Good has objected to instructions given at the trial, but has failed to cite any authorities to substantiate his objections. In substance, appellant-Good has presented this court with his conclusions in lieu of cogent argument supported by authorities. In N.Y. Central Ry. Co. v. Milhiser (1952), 231 Ind. 180, at 189, 106 N.E.2d 453, at 458, our Supreme Court stated:
"It has been held many times that all reasonable presumptions are indulged on appeal in favor of the rulings and judgments of a trial court, that 3. the record must exhibit the errors for which the reversal is sought, and that a court of appeals will not presume anything in favor of appellant to sustain his alleged error." (Citing authorities.)
This court in Deming Hotel Co. v. Prox (1968), 142 Ind. App. 603, 14 Ind. Dec. 214, 236 N.E.2d 613, at 617 (Transfer denied), held as follows:
"The Motion for a New Trial contained many alleged causes for a new trial. Several of these were not supported by argument or citations of authority in the Appellant's brief, and are therefore deemed to be waived pursuant to Rule 2-17(i) of the Rules of the Supreme Court of Indiana." (Emphasis supplied.)
Formerly Rule 2-17, Rules of the Supreme Court of Indiana, now Indiana Rules of Procedure, Rule AP. 8.3.
Appellant having failed to show any reversible error, the judgment of the trial court should be affirmed.
Judgment affirmed.
Lowdermilk, C.J. and Sullivan, J., concur.
Lybrook, J., not participating.
NOTE. — Reported in 262 N.E.2d 548.