Summary
In Wright v. Galle, 125 Ind. App. 401, 124 N.E.2d 212, the court held that a specification of error resting on misconduct of an opposing attorney must be presented to the appellate court by a bill of exceptions properly settled and allowed, in the absence of which, the issue would not be reviewed.
Summary of this case from State v. RuonaOpinion
No. 18,547.
Filed February 9, 1955. Rehearing denied March 11, 1955. Transfer denied April 20, 1955.
1. APPEAL — Briefs — Condensed Recital of the Evidence — Recital of Evidence in Argument Portion of Brief — Failure to Comply with Rule 2-17(d). — Appellants' brief contains no condensed Recital of Evidence but in the Argument Portion of the brief presents what they term a "fair recital" of the evidence which is not in narrative form and omits important parts of evidence and this fails to meet the requirements of Rule 2-17(d). p. 403.
2. APPEAL — Assignment of Error — Independent Assignment of Error. — The appellants present as assignment of error their motion for a new trial, affidavit in support of new trial motion, overruling motion for new trial and the only assignment available to appellants is the overruling of the motion for new trial as the other matters cannot be independently assigned as error. p. 403.
3. APPEAL — Record — Misconduct of Counsel — Special Bill of Exceptions not Signed by Judge. — Appellants allege as error the misconduct of opposing counsel in argument, but there is no special bill of exceptions containing the argument of opposing counsel and the asserted errors based on the misconduct of counsel are not in the record for the court's consideration. p. 403.
4. APPEAL — Record — Misconduct of Counsel Set Out in Affidavit Attached to Motion for New Trial — What Affidavit Must Contain to Put Question of Misconduct Before the Appellate Court. — An affidavit attached to the motion for new trial containing reference to misconduct of opposing counsel does not place the issue of misconduct before the Appellate Court under Rule 1-15 since the affidavit does not set forth the objectionable argument of counsel, the objections thereto and the ruling of the court thereon. p. 404.
5. APPEAL — Trial — Improper Remarks of Counsel — Jury Instructed to Disregard — Further Action Required to Obtain Review of Improper Remarks. — Where the court has sustained opposing counsel's objections to alleged improper remarks and instructed the jury to disregard them, such alleged objectionable statements will not be reviewed unless the complaining party requests or takes further prescribed and appropriate action deemed requisite for a fair and impartial trial. p. 404.
6. APPEAL — Briefs — Failure to Set Forth Evidence — Instructions — Reversible Error Cannot Be Determined in Absence of Evidence. — The appellants' brief fails to set out the evidence and therefore it cannot be determined whether the giving of certain instructions constitutes reversible error. p. 405.
From the Dearborn Circuit Court, Lester G. Baker, Judge.
This is an action on a promissory note. The jury returned a verdict for appellee, Harry Galle, Administrator with the will annexed of the Estate of Edward Wiesehan. William Wright and Cecilia Wright, appellants, appeal.
Affirmed. By the court in banc.
James T. McManaman, of Lawrenceburg, and Jack Glenn Williams, of Cincinnati, Ohio, for appellants.
Hartell F. Denmure, of Aurora, and Gerald H. Ewbank, of Lawrenceburg, for appellee.
This is an appeal from a judgment on a jury verdict in favor of appellee in an action on a promissory note.
The pleadings filed in the action by the respective parties are not set forth in appellants' brief. The brief contains no Condensed Recital of the Evidence. In the 1. argument portion of their brief, appellants present what they term a "fair recital" of the evidence. However, if we treat this as an attempted condensed recital of the evidence, it fails to meet the requirements of Rule 2-17(d) for the evidence is not given in narrative form but, in the main, consists of appellants' interpretative conclusions of what the evidence discloses. The evidence of one witness is entirely omitted. The note sued upon and constituting the basis of the cause of action, is not incorporated in the brief, either in substance or by copy. Such presentation is not a compliance with the rules.
Under the Concise Statement of the Record, appellants set forth 26 alleged errors which they designate as "assignment of error"; appellants' motion for a new trial; affidavit in support of the new trial motion; the overruling of the motion for a new trial; and a protracted reference to and discussion of the 26 alleged errors.
The only assignment of error available to appellants is number 23 charging error in the overruling of appellants' motion 2. for a new trial. The other alleged assignments of error comprise matters which cannot be independently assigned as error.
The new trial motion contains 14 specifications of alleged error. Specifications 1 to 4, inclusive, deal with asserted misconduct of counsel in the argument to the jury. We find 3. no special bill of exceptions containing the argument of counsel objected to. The record shows the filing with the court by appellants of a "petition" for the allowance of a special bill of exceptions accompanied by what is termed the special bill of exceptions containing "excerpts of closing argument to jury by Hartell F. Denmure, Attorney for Plaintiffs." The court "after due consideration" found that said petition does not correctly set forth said "items or argument of counsel" and "that it is impossible for the court to correct said tendered special bill of exceptions" and the court "now denies defendants' petition for special bill of exceptions." There is no showing, nor do we find from the record, that appellants sought any mandate to compel the correction and signing of said special bill of exceptions by the trial judge. It follows that the matters referred to in said specifications 1 to 4, inclusive, are not in the record for our consideration.
Appellants seek to avoid the refusal of the judge to approve said special bill of exceptions by attaching to their motion for new trial an affidavit of one of their counsel containing 4. reference to the asserted offensive argument of appellee's counsel. They then urge that under the provision of Rule 1-15 to the effect that "such affidavits shall be considered as evidence" without introduction on a new trial hearing and "shall be a part of the record without a bill of exceptions," the "misconduct is in the record and before this court anyway." With this we cannot agree since the affidavit consists of nothing but stated conclusions of the affiant and fails to set forth the objectionable argument of counsel, the appellants' objections thereto, and the ruling of the court thereon.
We note from the transcript and appellants' brief that the court sustained appellants' objections to the offensive argument of counsel and, in each instance, instructed the jury to 5. disregard the statement of counsel. Appellants did not and have not in any way presented or preserved any contention that the asserted misconduct of counsel was of such character and so prejudicial to them that the harm could not be eradicated by the instruction to disregard counsel's statement. Where the court has sustained opposing counsel's objection to alleged improper remarks and instructed the jury to disregard them, such alleged objectional statements will not be reviewed unless the complaining party requests or takes further prescribed and appropriate action deemed requisite for a fair and impartial trial. Staser et al. v. Hogan et al. (1889), 120 Ind. 207, 222, 21 N.E. 911; Coleman v. State (1887), 111 Ind. 563, 565-568, 13 N.E. 100; see 108 A.L.R. 756, Annotation, and cases cited.
Specifications 5 to 14, inclusive, each require reference to the evidence for proper consideration and determination thereof. As stated, appellants have failed to set forth the evidence in their brief. We are, therefore, deprived of the opportunity to determine the validity of the assertions of error made in said specifications.
We further observe, however, that without reference to the presence or absence of the evidence in appellants' brief, specifications 8 to 14, inclusive, present no question for 6. consideration. Insofar as some of the instructions may be regarded as stating abstract propositions of law, they might be determined without the evidence. But whether the giving of them constitutes reversible error cannot be determined in the absence of the evidence.
No error having been shown, the judgment must be affirmed.
Judgment affirmed.
NOTE. — Reported in 124 N.E.2d 212.