Scott v. Baird , 63 Ind. App. 16 ( 1916 )

Felt, J.

This case was tried on an amended complaint in four paragraphs, for money loaned and for conversion, which was answered by a general denial, a plea of payment, and a plea of accord and satisfaction. A reply in general denial was filed to each of the special answers. The jury found for the plaintiff in the sum of $548.25, and returned answers to certain interrogatories. The motion for a new trial was overruled, judgment was rendered on the general verdict, and appellant appealed to this court.

The errors assigned are the overruling of the motion for a new trial/ and error in overruling the demurrer to each paragraph of the amended complaint'.

1. The alleged error in ruling on.the demurrer to the complaint is waived by -appellant’s failure to state'.any point or proposition relating thereto or to mention or in

any way refer to the subject under the heading of “Points and Authorities” as required by Rule 22 of this court. Kaufman v. Alexander (1913), 180 Ind. 670, 103 N. E. 481; German Fire Ins. Co. v. Zonker (1914), 57 Ind. App. 696, 701, 108 N. E. 160; Board, etc. v. State, ex rel. (1910), 175 Ind. 147, 156, 93 N. E. 851.

2. Appellee insists that no question is presented by the assignment that the court erred in overruling appellant’s motion for a new trial because the motion was not

in fact filed and is not a part of the record in the

case. The record at page 96 shows the filing of such motion, and subsequent entries show that a motion was made to strike it from the files, which was overruled. The transcript also shows that the motion for a new trial was overruled ánd this appeal prayed and granted, but the motion is not set out any place in the transcript. The motion for a new trial not being in the record, no question relating thereto is presented or can be considered by this court. Elliott App. Proc. §§186, 709 et seq.; Brown v. State (1895), 140 Ind. 374, 39 N. E. 701; Hobbs v. Salem-Bedford Stone Co. (1899), 22 Ind. App. 436, 53 N. E. 1063; LaFollette v. Higgins (1887), 109 Ind. 241, 9 N. E. 780; Wurfel v. State (1906), 167 Ind. 160, 78 N. E. 635; Vesey v. Day (1910), 175 Ind. 406, 409, 94 N. E. 481; Mesker v. Fitzpatrick (1911), 48 Ind. App. 518, 94 N. E. 827; Lawrence v. Oliver Typewriter Co. (1912), 51 Ind. App. 434, 99 N. E. 809; McCardle v. McGinley (1882), 86 Ind. 538, 541, 44 Am. Rep. 343.

Judgment affirmed.

Note.—Reported in 113 N. E. 769.