Hall v. Phillips

Pee Cubiam, Notwithstanding the fact that we have so frequently called attention to the necessity of compliance with the rules of court, j'elating to assignments of error, these rules are still too frequently ignored. The only remedy for this is enforcement of the penalties prescribed in said rules. The penalty for noncompliance with rule xxii is, “ a waiver of all errors so alleged : ” that attached to rules xxm and xxiv is, that “ any assignment of error not according to ” them, respectively, “ will be held the same as none.” Rule xxm provides : “ When the error is assigned to the charge of the court, or to answer to points, the part of the charge or the points and answers referred to must be quoted totidem verbis in the specification.” The first five specifications in this case offend against this rule, in that neither of them contains the court’s answer to the point therein quoted. Referring to the points submitted by defendants, we find that the court’s answer to the second consists of nearly four lines and and its answer to the fourth poixit coxxsists of nine lines. While the axrswers to the first, third and fifth poixxts respectively, xnay be implied in said specifications, they are certainly not expressed therein totidem verbis, as the rule requires. The maixifest x'equirement of the rule is that the court’s answer to each point, as well as the point itself, shall be accurately quoted in the specification of ei'ror in the very words used by the court. Anything short of this is non-coxnpliance with the rule. The reasons, for requiring both point and answer thereto to be accurately quoted in the specification, are obvious. One of them is, that “ the assignment of errors ” is an essential part of the pleadings in this coxxrt. Another is, that we may have both the point and the court’s answer thereto in the specificatioxi before us, and not be obliged to searoh for either in other parts of the record; but it is not our present purpose to defend but to enfox’ce the rule. The first five specifications are therefore dismissed without further coxnment. [498] In the sixth, seventh and eighth specifications, the points, together with the court’s answers thereto, are quoted totidem verbis, as the rule requires; but there is no merit in either of these specifications. The sixth and seventh are each predicated, in part at least, of the testimony of R. J. Phipps, which was rightly withdrawn from the jury; and for that reason the learned judge committed no error in refusing to affirm them. As a legal proposition, applicable to the undisputed facts of this ease, it would have been error to have affirmed defendant’s point recited in the eighth specification. The ninth and last specification is not sustained. The court rightly came to the conclusion that the testimony of R. J. Phipps was improperly received, and that if it were properly received, there is nothing in it that would justify its submission to the jury; and hence there was no error in withdrawing it from their consideration. Judgment affirmed.