Opinion
No. 17,206.
Filed March 13, 1944.
1. APPEAL — Assignment of Errors — Negative Judgment — Sufficiency of Evidence. — A negative judgment cannot be attacked on the ground that the decision is not sustained by sufficient evidence, and a judgment against plaintiff on its complaint and in favor of defendant on his cross-complaint cannot be reversed on such an assignment. p. 565.
2. APPEAL — Assignment of Errors — Decision Contrary to Law — Specification Proper Where Party Denied Relief. — If plaintiff feels that the evidence, which is in large part documentary, entitles it to relief, which was denied it by a judgment against it on its complaint and in favor of defendant on his cross-complaint, it may assert its contention under the specifications of the motion for new trial that the decision is contrary to law. p. 565.
3. APPEAL — Evidence — Sufficiency — Judgment Against Party on Cross-Complaint Not Negative. — A judgment against plaintiff on defendant's cross-complaint is not a negative judgment and as to it plaintiff may challenge the sufficiency of the evidence. p. 565.
4. APPEAL — Briefs — Appellee Failing to File — Belief That No Question Presented by Appellant — Appeal Continued and Briefs Ordered Filed. — Where appellee, believing that no question was presented by appellant for determination, did not attempt to answer appellant's propositions, but appellant's assignments of error were proper, and it appeared that the administration of justice would best be served if the Appellate Court had the benefit of an answer brief on the merits, final action on the appeal was continued and an order entered allowing time for the filing of answer briefs and reply briefs thereto. p. 565.
From the St. Joseph Superior Court; J. Elmer Peak, Judge.
Action by Warren Company, Inc., against Angelo Exodus for replevin of an electric refrigerator, wherein defendant filed a cross-complaint for damages based upon breach of warranty and fraud. From a judgment against plaintiff on its complaint and for defendant on his cross-complaint, plaintiff appealed.
Final action on appeal continued. By the court in banc.
[For opinion on the merits, see post p. 651.]
Morris D. Feldman, of South Bend, for appellant.
Leo J. Lamberson and Theodore G. Wood, both of South Bend, for appellee.
Appellant brought this action against appellee for replevin of an electric refrigerator. Appellee answered the complaint and also filed a cross-complaint for damages based upon alleged breach of warranty and fraud. Trial resulted in judgment against appellant on its complaint and for appellee on his cross-complaint in the sum of $420.
The sole error assigned on appeal is the overruling of appellant's motion for a new trial, the specifications of which are that (1) the decision is not sustained by sufficient evidence, and (2) the decision is contrary to law.
In his answer brief appellee says that no question is presented and therefore does not attempt to answer appellant's propositions.
It is true as appellee contends that a negative judgment cannot be attacked upon the ground that the decision is not sustained by sufficient evidence, and the judgment against appellant 1, 2. on its complaint could not be reversed on such an assignment. But the evidence is in large part documentary. If appellant feels that the evidence entitles it to relief which was denied it by the decision, it may assert its contention under the specifications of the motion for a new trial that the decision is contrary to law. Wilson Admx. v. Rollings (1938), 214 Ind. 155, 14 N.E.2d 905.
The judgment against appellant on appellee's cross-complaint is not a negative judgment and as to it appellant may 3. challenge the sufficiency of the evidence.
The administration of justice will be best served in this appeal if the court has the benefit of an answer brief on the merits. Therefore, final action on this appeal is continued 4. and appellee is given 30 days in which to file an answer brief on the merits amicus curiae and appellant is given 15 days after the filing of such brief for reply.
NOTE. — Reported in 53 N.E.2d 546.