Opinion
No. 17,066.
Filed April 30, 1943. Rehearing denied May 22, 1943. Transfer denied June 16, 1943.
1. APPEAL — Briefs — Rules — Purpose of Rule 2-17 Concerning Preparation. — The purpose of Rule 2-17 of the Supreme Court concerning preparation of appellant's brief is to have provided an unbiased statement of the facts without argument and a succinct statement of the applicable legal proposition to support appellant's contentions. p. 487.
2. APPEAL — Briefs — History of Case — Argumentative Statement Insufficient. — Where appellant's brief failed to comply with Rule 2-17 of the Supreme Court in that under a heading "Brief History of the Case," it contained an argumentative statement of facts from appellants' viewpoint, and it omitted a statement as to what the issues were, how they were decided and what the judgment or decree was, and the errors relied upon for reversal, and, after the brief was amended, it still contained the argumentative statement and merely contained a statement that, as to the issues, judgment and errors relied upon, "See Appendix to Appellant's Reply Brief," no question was presented for review. p. 488.
From the St. Joseph Superior Court; J. Fred Bingham, Judge.
Action by William Major and another against Ben H. Kaplan and another. From the judgment entered, William Major and another appealed.
Affirmed. By the court in banc.
Arnold, Degnan, Goheen Zimmerman, of South Bend, for appellants. Morris Feldman, of South Bend, and Reed Reed, of Knox, for appellees.
On September 23, 1942, this appeal was submitted under rule 2-14 of the Rules of the Supreme Court. On October 22, 1942, appellants' brief was filed. On November 18, 1942, appellees' brief was filed in which appellees asked that the judgment be affirmed because of failure of appellants to comply with the rules of this court in preparing their brief. On December 2, 1942, appellants filed their motion to amend their briefs by inserting by interlineation the following statement: "II, III IV See Appendix to Appellants' Reply Brief."
On December 29, 1942, appellees filed their motion to dismiss the appeal based principally upon the contention that appellants had failed to comply with the rules of this court in preparing their brief. On February 2, 1943, this court granted appellants' motion to amend its brief and reserved ruling on the motion to dismiss. Appellants' brief has been amended in compliance with their motion. Their reply brief was filed on December 2, 1942.
Appellants' brief as originally filed failed to comply with rule 2-17 of this court in that, (1) from page 2 to 16 under a heading "Brief History of the Case," it contained an argumentative statement of facts from appellants' viewpoint; and (2) it omitted a statement as to what the issues were, how the issues were decided and what the judgment or decree was, and the errors relied upon for reversal.
After the brief was amended the argumentative statement of facts under the heading "Brief History of the Case," remained unchanged. It should be noted that the brief contains in 1. addition an argument under the proper heading and in the proper place. The clear purpose of rule 2-17 is to have provided an unbiased statement of the facts without argument and a succinct statement of the applicable legal proposition to support appellants' contentions, also without elaboration or argument. The rule clearly provides that argument must be confined to that part of the brief under the heading "Argument."
After the brief was amended it still failed to contain a statement as to what the issues were, how the issues were decided and what the judgment or decree was, and the errors relied 2. upon for reversal. It merely contained the statement, "II, III IV See Appendix to Appellants' Reply Brief." That is not compliance with the rule.
Nor can we agree with appellants' contention that appellees in their answer brief have supplied the deficiencies of appellants' original brief.
No question having been presented judgment must be affirmed.
Judgment affirmed.
NOTE. — Reported in 48 N.E.2d 82.