Burkholder v. Stahl

The opinion of the court was delivered, July 6th 1869, by Thompson, C. J. The defendants in error in effect demur to the pleadings in this writ of error, for want of conformity to the rules of court providing for the assignment of errors: 6 Harris 578; and claim that they are not bound to notice them, on the authority of the last clause of Rule 8, which says, “ any assignment of error not according to this and the last rule will be held the same as none.” These rules require that in assigning errors to the charge of the judge, they are to be in totidem verbis, and that when “ to the admission or rejection of testimony the specification must quote the full substance of the bill of exceptions, or copy of the bill in immediate connection with the specification.” The objections thus made to the several assignments of error in this ease, call upon us to interpret and enforce the rules thus invoked. If they deserve, for anything which has been flagrantly neglected, to be visited with a disregard of the assignments themselves, it is a fault not to be charged to the rules, but to a neglect of conformity to their requirements. In Thompson v. McConnell, 1 Grant 396, the rules were enforced upon similar objections, and the profession were notified, “ that hereafter errors not assigned as required by the rules to be found in the appendix to 6th Harris, will be held the same as no assignments at all.” So in Daniel v. Daniel, 11 Harris 198, and in Bull’s Appeal, 12 Id. 286. Thus has timely warning been given that the rules of practice established by this court will be insisted on. We repeat that warning again, with a very full determination to enforce the subjects of them. That we have not always enforced the rules, has resulted from a reluctance to see injustice done if it might result therefrom, rather than from any disposition to relax them, as experience has shown they are not only a great convenience, but a ne [376] cessity, in the increase of business thrown upon this court by the increasing population and wealth of the country. We will now proceed to ascertain whether the objections made to the assignments of error in this case are well founded or otherwise. The objection to the 1st, 3d and 4th assignments is that they specify error on part of the court in not charging the jury in a particular way, although it appears no request was made so to charge. This is rather a question of practice than of express rule, but it is so well established in numerous reported decisions, and in the daily administration of the law of the court, that error cannot be assigned of what was NOT said by the judge merely, and it is as much a fault to assign such errors as if expressly prohibited by rules in the most explicit terms. A few of the latest authorities on the point will be found in 6 Wright 143 and 493, and 5 P. F. Smith 407. This rule ought never to be transgressed excepting in very flagrant omissions of the court, plainly operating positively to mislead the jury. The 2d assignment of error is also a wide departure from the rule requiring the portion of the charge claimed to be error to be quoted in Jicee verba. The portion quoted here is not in hcee verba, nor substantially correct. It is therefore within Rule 7th, 6 Harris supra, and not to be specially noticed. The 5th assignment is also deficient; the point, the subject of the exception, is not embraced in it. When the assignment of error is upon an exception to the charge in answering, or refusing, or omitting to answer a point, the assignment of the error should embrace the point in the same manner as it is required to embrace the bill of exception when the error is to the rejection or admission of evidence. The assignment of error should be substantially thus: “ The court erred in answering (or in refusing or omitting to answer, as the case may be), the first point of the plaintiff or defendant, which point is as follows, to wit:” Here the point should appear in full, with the answer, if any. That is wholly omitted in this assignment, and also the 6th and 7th assignments of error. They are all in the same category, and are not entitled to be noticed severally. If there were no rules on the subject at all, it seems to me it would occur to the learned professors of the law, that this would be necessary in order to constitute a good assignment of error. Proceedings in a court of error very closely assimilate themselves to proceedings in courts of original jurisdiction. As in the latter, the appropriate writ for the commencement of an action only states in a general way the cause of action or complaint, leaving it to be more specifically set out in the narr. ; so in the former, the writ in a very general way recites that, “ as it is said, manifest error hath intervened, to the great damage of the said plaintiff in error,” [377] the command to the judges in the court below, is to send up the “record, process and all things touching the same,” “that being inspected, we may further cause to be done, what of right, and according to our laws and customs ought.” Although this writ is to the judges, yet it is to be served on the adverse party notifying him to appear, &c. The cause of complaint is thus very general, and it is left to the assignments of error to specify the cause of complaint, as a narr. does the cause of action in other courts. When that is done, and errors are assigned, the defendant’s plea is in nullo est erratum. The case in error is then at issue. Like a narr., therefore, the assignment of error must be complete in itself: that is, self-sustaining. Whatever is part of it must be parcel of it. If the error be in answering a point, the point must be in the assignment of error in order to see what the error is. It would be a very defective narr., it will be admitted, in replevin, simply to state that the defendant had. taken the plaintiff’s goods, without stating what goods; or in slander, to say that the defendant had spoken defamatory words of the plaintiff, without giving the words; or in a suit on a note or bond, stating the indebtedness to be by note or bond, without setting out the instrument or giving the substance; the writ does this only, and it is left to the narr. to do more. Neither of these instances would be a greater departure from that logical precision required in the law, than in charging that a court erred in their answer to a point without stating the point. Let it always be remembered, that process to correct errors is the institution of a species of action, in which there are pleadings, and the mind will readily recur to the necessity of furnishing such pleadings in a complete and intelligent form. It is often, I am persuaded, the want of a recurrence to this, that produces the neglect of that which ought to assimilate the proceedings in error to proceedings in courts of original jurisdiction. It is sometimes said, it is burdensome to reprint the points in a case in the assignments of error, when they are required to be sot forth elsewhere in the paper-book. The same might be said of narrs. in the cases referred to ; but the answer is twofold; whatever is worth doing is worth doing well; and what the law requires to be done is necessary to be done. I will grant that where points are unnecessarily numerous the complaint is not always groundless. But long practice at the bar and on the bench, has satisfied me, that it is a rare case where more than three or four, or at most a half a dozen, of points are necessary, in order to direct the attention of the court to the special views of counsel in any case. Points are the judicial operation of counsel’s mind, and if made only on this conviction, or firm belief that they are the law, they will be few. If made to entrap, or without a conscientious conviction or firm belief that they present the law [378] of the case, it is in my judgment, a violation of the moral ethics which the professional obligation is designed to inculcate. And just here I may be pardoned for saying, that these remarks are especially applicable to assignments of error. Good faith to the court should ever prevent any assignment of error, without a conscientious belief that it is an error. I will not quote the professional abjuration of all species of falsehood in representations of any kind to the court, for I am well persuaded that its violation is never intended; but it is not possible to avoid inquiring, when assignments of error in a case amount, as they often do, to one, two or three dozen, whether the counsel think that many errors exist in the case, or ever existed in any ease, tried by a sane judge. It is often applied to remarks about the number of assignments of error, that counsel cannot tell where the error is, or what the court may think is error. Let the advocate exercise the functions of a judge before setting forth his complaints of error — reflect; call to his aid his learning ; and after having thus exercised his mind to the best of his ability, assign his errors. If they are numerous after that, they will justify him, by their seeming merit, at least; but it will be a very rare case if they exceed a half dozen at any time. These remarks, it will be observed, are general, and have no special reference to the very case in hand, although they have to the matter discussed above, viz.: the presentation of cases to this court. The 8th assignment of error is to the effect that the court erred in failing to lay before the jury fully and clearly the general law of the case arising on the several points of defendants. This assignment directly contravenes Rule 6th, 6 Harris supra, which forbids the having more than one point in one specification of error. This is a complaint of error in the answers to all the points. General errors are never regarded. So is this assignment in violation of the rule which requires the portion of the charge complained of to be set forth in totidem verhis, as well as of Rule 5th of the old rules, that counsel must specify in writing the particular errors he assigns. The 9th and last assignment of error, that the court erred in refusing a new trial, must be regarded as an oversight of the learned counsel in the ease. They failed to remember that the refusal of a new trial is not the subject of error in this court. The motion is an appeal to the discretion of the court below, which is not reviewable here. While on this subject, which embraces somewhat the practice in preparing cases for due presentation in this court, it may not be entirely amiss to go a little beyond the points raised in objection to the presentation in this case, and notice a matter not complained of here, but which we often feel the inconvenience of, namely: the citation of books without any reference to the prin [379] ciples which it is claimed they establish. This directly contravenes Rule 10th, 6 Harris 578. “ A naked reference to the book,” says the rule, “ will not be sufficient.” The penalty for the violation of this rule, as well as any other, may be found in rule 17th: To the plaintiff in error a nonsuit, to the defendant in error his paper-book will not be received. The reason of the Rule is to enable the judges at once, without resort to the books themselves, which is not possible during the argument, to see what bearing the principle is to have on the case, or whether or not it supports the position contended for, and if so, whether it will affect the general result of the case. No rule is more important than this, and while it is generally observed, still it is too often neglected. So, in citing reports, the names of the parties and the page of the look where the ease begins, should be carefully and accurately given, and not the page merely where the principle cited is to be found. Dates should be scrupulously given. Errors in this particular are often embarrassing, as, in writing opinions, the judges often cannot have the records before them to refer to. Remissness in correcting the proofs of paper-books is also very often a noticeable feature in some practitioners. First impressions of slovenly work are never very favorable to the party presenting it, and this ought to be sedulously guarded against. If nothing else, a decent respect for the court ought to cause reasonable care in this particular. Rules are very important aids in the trial of cases, and no less so in reviewing these trials; and unless they are enforced, it would be better there were none. It is therefore in no spirit of captiousness that we insist upon their observance, and will most steadily do so in the future; they are one and all essential to the despatch of the greatly-increasing business of this court. Were we apprehensive of wrong to the plaintiff in error in making a final disposition of this ease, we would do no more than non pros, the writ, so that the party, if he chose, might sue out another; but we have looked into the charge of the learned judge with a view to what might be proper to be done, and having satisfied ourselves that there is no just ground of complaint in regard to anything which occurred in the trial, so far as the court was concerned, we think that the judgment ought to be affirmed, and further strife ended in the case. Judgment affirmed.