Michaels v. Johnson , 140 Ind. App. 389 ( 1967 )

Prime, J.

— 'This is an appeal from a judgment adverse to appellant, defendant below. No discussion of facts is contained herein; this case has not been considered on the merits.

Appellant has omitted vital matter from his Brief. It is fatally defective for failing to include therein:

1. Appellant’s assignment of errors, or any statement concerning its content. Clements v. State (1963) 244 Ind. 501, 193 N. E. 2d 908. Indiana Supreme Court Rule 2-17.

2. Appellant’s motion for new trial. Coleman v. State (1961) 241 Ind. 663, 175 N. E. 2d 25. Hinshaw v. Hildebrand (1963) 135 Ind. App. 157, 192 N. E. 2d 767.

3. Appellant’s objections to the giving or refusal to give the instructions complained of. Morrow v. Paugh (1950) 120 Ind. App. 458, 91 N. E. 2d 858.

4. The judgment of the trial court. American Casualty Co. v. Hallman (1962) 134 Ind. App. 447, 186 N. E. 2d 175.

After being apprised of the above defects by Appellee’s Answer Brief, Appellant then submitted to this court the following petition:

“Appellant’s Motion to Include Additional Materials in Concise Statement of Record.

“Comes now the Appellant through his attorney, and respectfully requests that he be allowed to include as additional materials in his Concise Statement of the Record, the first 66 pages of Appellant’s Reply Brief. In support of this Motion, Appellant alleges that the first 66 pages of his Reply Brief contain additional excerpts from the record, and more specifically, all the additional excerpts allegedly omitted from Appellant’s original Concise Statement of the Record. To better allow this court to decide this cause upon the merits, Appellant, rather than quibble with Appellee’s position, has included all allegedly omitted materials as a preface to Appellant’s Reply Brief, and at this time respectfully moves the Court to allow to same to be considered as part of Appellant’s original Concise Statement of the Record.”

This petition was interpreted as a request by Appellant to amend his Reply Brief, there appearing in the petition no mention of Appellant’s Brief or request to amend Appellant’s Brief. No briefs or other memoranda accompanied the petition to aid in its consideration.

The court, acting through the Chief Justice, issued the following order after holding the above petition for two weeks:

“Authority to Include Additional Materials in Concise Statement of Record.

“On February 7, 1966, the appellant filed his petition to include as additional materials in Concise Statement of Record, the first 66 pages of Appellant’s Reply Brief, allegedly omitted, said petition being in the following words and figures, to-wit:

(H. I.)

“And the court being fully advised in the premises finds that the petition to include additional materials in the Concise Statement of Record of Appellant’s Reply Brief should be granted.

“IT IS, THEREFORE, ORDERED that the Appellant amend the Concise Statement of Record in Appellant’s Reply Brief to include additional materials allegedly omitted.”

Appellant amended his Reply Brief accordingly but made no change in his brief in chief.

Therefore, all we have before us is Appellant’s defective Brief and Appellee’s Answer Brief, and pages 67-81 of Appellant’s Reply Brief, containing only a Reply to Appellee’s Answer Brief. Pages 1-66 must be disregarded, since that material is concerned with new issues not discussed in the Appellant’s Brief. The pertinent rule as stated in Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 2682 and numerous cited cases, is:

“Appellant may discover that he has made omissions or inaccurate statements in his original brief and desire to make corrections or additions. He cannot do this in his Reply Brief. If additions or corrections were allowed to be made, Appellee would have no opportunity to answer as to them for the Reply Brief is the last brief on the merits.” See also: Bohannon v. Stutz (1937) 103 Ind. App. 552, 7 N. E. 2d 510.

Appellant has, by the numerous errors and omissions referred to, failed to present any issue on appeal. The judgment appealed from is hereby affirmed.

Judgment affirmed.

Carson and Faulconer, JJ., concur.

Cooper, C. J., not participating.

Note. — Reported in 223 N. E. 2d 585.