In Moore, 160 Kan. 167, 160 P.2d 675, the court applied the principle of interest in future litigation to the issue before it to find that the appeal was not moot.Summary of this case from State v. Roat
Filed June 15, 1945.
1. RECEIVERS — Final Report — Exceptions — Ruling First on Exception and Second on Account not Required by Statute. — Where claimant participated in the hearing on the issue formed by exceptions to a receiver's account, the court's ruling approving the report decided that claimant's exceptions were not well taken, and the statute concerning final reports of receivers did not require a ruling first on the exceptions and second upon the account. p. 458.
2. APPEAL — Evidence — Failure to Bring Into Record — Question of Insufficiency not Considered. — An assignment of error that the decision is not sustained by sufficient evidence cannot be considered where the evidence is not before the reviewing court. p. 458.
3. APPEAL — Evidence — Failure to Bring Into Record — Assignment that Decision Contrary to Law Presenting no Question. — An assignment of error that the decision is contrary to law presented no question for review where the evidence was not in the record and no reason other than the insufficiency of evidence to support the decision was stated in the Propositions, Points and Authorities portion of appellant's brief. p. 458.
4. APPEAL — Briefs — Failure to Prepare According to Rules — Appeal Dismissed. — Where appellant's brief was not prepared in such a manner that the Supreme Court could ascertain the question to be decided and did not contain a sufficient statement of the record to present the question, the court was required to dismiss the appeal for failure to comply with the rules of the court concerning preparation of briefs. p. 458.
From the Vanderburgh Probate Court; Wendell F. Lensing, Judge.
Proceeding by the United States of America, on the relation of Will H. Smith, Collector of Internal Revenue for the Collection District of Indiana, against Thomas Moore and others involving a claim in a receivership proceeding, wherein the receiver filed a final account to which relator and others excepted. From an order approving the final account and directing distribution of assets, relator appealed.
Samuel O. Clark, Jr., Assistant Attorney General of United States, Sewall Key and A.F. Prescott, Special Assistants to Attorney General, and B. Howard Caughran, U.S. Attorney, and Paul A. Pfister, Assistant U.S. Attorney, both of Indianapolis, for appellant.
Darby Fitzgerald, of Evansville, Thomas J. Gallagher, of Sullivan, and Herman L. McCray, William F. Little, Wilbur C. Clippinger, Isidor Kahn, Curtis C. Plopper and John W. Spencer, all of Evansville, for appellee.
Appellant's brief presents no question for review. It would serve no good purpose to detail herein all its insufficiencies. Appellant has been made aware of them by appellees' motion to dismiss the appeal. Without going to the record we are not able even to formulate an accurate statement of the issues and how they were decided. It appears from the record that appellant filed a verified claim asserting priorities in a receivership proceeding. Many other claims were filed and about a year after the receiver was appointed he filed a final account, itemizing his receipts and disbursements, listing all claims filed, recommending that they be paid in a certain order of priority, and requesting approval of the account and order of distribution accordingly. Several claimants, including appellant, filed exceptions to the account. There was a hearing participated in by appellant and thereafter an order approving the account and directing distribution as recommended by the receiver with certain exceptions set forth in the order. Appellant filed a motion for new trial which was overruled and this appeal followed.
The brief does not quote, abstract nor summarize the receiver's final account, appellant's exceptions, the order appealed from, or the motion for new trial. We find in that part of the order specifically referring to appellant's claim a recital that "the court having heard the evidence and being duly advised in the premises now finds, etc.". This sufficiently establishes the necessity for a bill of exceptions containing the evidence, absence of which appellant seeks to excuse on the ground that there was no "real testimony" submitted. There are other forms of evidence besides testimony.
Nine of the 11 assignments of error allege errors that clearly should have been presented in the motion for a new trial and may not be independently assigned. The 1. first assignment alleges failure of the court to rule on appellant's exceptions to the receiver's final account. We have shown above that a ruling was made. Appellant's real complaint is that the ruling was erroneous. Appellant's strange contention that § 3-2616, Burns' 1933 (Supp.), requires two rulings, the first on the exceptions and the second upon the account, is without merit. The issue was upon the exceptions to the account. Appellant participated in the hearing on that issue and the ruling approving the report decided that appellant's exceptions were not well taken.
The tenth assignment of error, in overruling the motion for a new trial, is the subject of "Proposition Ten" wherein appellant merely recites, without reason or cited authority, three 2, 3. specifications of the motion. Only two of these are statutory grounds for a new trial. One is that the decision is not sustained by sufficient evidence. Without the evidence before us it may not be considered. The other is that the decision is contrary to law. Sometimes a decision is contrary to law because it is not sustained by sufficient evidence. If that is appellant's contention it is already answered. If there is some other reason it should have been stated in the Proposition or some Point thereunder.
In our desire to decide appeals upon the merits we have many times overlooked deviations from the rules governing the form and content of an appellant's brief. But in those cases we were 4. always able to ascertain the question to be decided and the brief contained a sufficient statement of the record to present the question. Here it does not. A decent respect for our rules requires that the appeal be dismissed and it is so ordered.
Note. — Reported in 61 N.E.2d 461.