Baskerville v. Thomas

SMITH, J. A preliminary matter muse first be disposed of in connection with this appeal. The action was tried to a jury, and on March 7, 1912, a verdict for defendant was returned by direction of the court, upon which judgment was entered March 8, 1912. The appeal is from the judgment and an order overruling motion for a new trial. Appellant’s brief was filed December 6, 1912, and respondent’s brief January 9, 1913. At the opening of respondent’s brief, objections were made to the consideration of any matters sought to be reviewed on appeal, among which was the specific objection that no assignments of error arc contained in the brief, and that the brief contains no statement of facts, such as is necessary to an understanding of the alleged errors relied upon and discussed in the brief — citing State v. Doran, 28 S. D. 486, 134 N. W. 53. The cause was placed on the April, 1913, calendar, and assigned for argument on May 10, 1913, at which time counsel for appellant and respondent appeared and argued and submitted the cause. Upon the oral argument, respondent’s counsel vigorously [435] urged the objection that appellant had made no assignment of error, in compliance with the rules cf this court. The cause was argued and submitted by appellant; but no application was then made for permission to make proper assignments of error. After argument and submission of the appeal, and on May 15, 1913, ap-1 ellar.t’s counsel made application for an order to show cause, returnable June 6, 1913, why leave to file a supplemental brief containing assignments 'of error , should not be granted. In the affidavit for the order to show cause, appellant’s counsel say: “In making up such brief, your affiant had consulted the opinion of the court in the case of State v. Doran, 28 S. D. 486, 134 N. W. 53, and was of opinion that appellant’s brief as made was suf-ficent to apprise the court and counsel of the errors complained of, and that no further assignment of error was necessary.’’ The opinion in State v. Doran was handed down January 17,. 1912, nearly a year prior to this appeal, and, during the year intervening, has been many times cited by this court in its decisions. The affidavit of appellant’s counsel expressly avers that this appeal was taken under the provisions of chapter 15, Daws 1911, which was interpreted by this court in State v. Doran. In that case this court said: “Chapter 15 of the Daws of 1911 has not in any manner modified or changed the requirements of the law and the rules of this court relating to assignments or specifications of particular errors upon which a party will rely on a motion for a new trial or upon appeal to this court.” Appellant's application for leave to file a supplemental brief containing assignments of error long after final argument and submission of the cause appears to be founded upon some alleged misinterpretation of the ruling in State v. Doran. No change whatever has been made either in the rulings or the rules of this court relating to assignments of error since that decision, and under the facts disclosed in this application we are wholly unable to conceive of any just reason for relieving appellant from the difficulties arising from a total disregard of its decisions. [1] Chapter 15, Daws 1911, expressly requires that appellant file with the clerk and have attached to the transcript specifications or error. The purpose of this provision is to inform the opposite party of the particular matters -specified as errors, so that he may see that the transcript covers all matters material to the specifica [436] tions filed. Where no specifications are filed with the transcript as required by the statute, the adverse party is safe in ignoring the transcript, for the reason that it cannot be considered either by the trial court upon motion for a new trial or by the appellate court. No specifications of error were attached to or filed with the transcript in this case. [2] Certain purported specifications were attached to and made part of the notice of intention to move for a new trial; but such specifications were a nullity, because the motion was to be made upon a record to be settled, and not upon the minutes of the court, and the purported specifications attached to the notice of intention were not even filed until after the statutory period had elapsed. The transcript was filed June 18th, and specifications should have been filed not later than June 28th. The notice of intention was not filed until July 1st, This default in filing specifications could not be cured unless, perhaps, through an order of the trial court, which order was never procured. [3] The statute expressly declares that the brief must contain the things required, and, if it does not, that the court “shall dismiss the appeal on motion.” The statute is mandatory, and this court cannot disregard its requirements. We should not have cared to further discuss this statute, had not appellant’s motion for leave to file assignments of error made it necessary. [4] With the language quoted from State v. Doran, supra, before appellant’s counsel, and the previous decisions of this court in numerous cases from the earliest days down to the recent descisions in McAndrews v. Security State Bank, 25 S. D. 590, 127 N. W.536, and State v. Johns, 25 S. D. 451, 127 N. W. 470, we can see no possible grounds for any mistake which should excuse so plain a disregard of the rules governing the procedure on appeal, and especially upon an application made after oral argument and final submission of the cause in this court. The case falls squarely within Dring v. St. Lawrence, 140 N. W. 246, Sanford v. Helgerson, 141 N. W. 390, and Todd v. Burger, 141 N. W. 515. [5, 6] An examination of the statements in appellant’s brief discloses that nothing appears therein which might even purport to be an assignment of error, with one possible exception, viz., a recital that “we assume that the questions to be raised and argued [437] in the Supreme Court are covered by the motion for a directed verdict, and- have not thought it necessary to set out these particulars in this brief.” If this statement be construed as an assignment of error, it could not by any possibility be deemed an assignment of any error, except such as may have been committed by the trial court in its ruling upon defendant’s motion for a directed verdict, and would present only 'that one ruling for review upon this appeal. The statement of facts, howevér, entirely omits one fact absolutely essential to appellant’s right to a review of the alleged error, namely, that such ruling was excepted to by appellant. Tt is true, the absence of an exception in thé statement of facts in appellant’s brief is not directly urged in respondent's brief; but this court has repeatedly held that, while it will not search the record for grounds of rerersal not urged by appellant, it may with propriety consider matters apparent upon the record before the court, which are sufficient grounds upon which to sustain the ruling of the trial court, although not urged by respondent’s counsel. [7,8] In this contention there is another matters to which we deem it proper to call attention at this time. The proposed supplemental brief containing assignments of error, submitted by r.ppdlant's counsel, in connection with the order to show cause, v h;Ty fails to comply with the rules of this court with respect either to the type or paper used in preparation of the brief, although printed subsequent to the promulgation of amended rule 10 (140 N. W. xiii), a copy of which rules was furnished to appellant’s attorneys.. This alone would be sufficient ground for its rejection. From statements made in appellant’s application, counsel appear to he laboring under the impression that one of the chief defects in the original brief was that the pleadings, verdict, and judgment are not printed in full therein. This court has never held this to be necessary, except where the error sought to he reviewed relates specifically to the pleading, verdict, or judgment itself. The application for leave to file a supplemental brief containing assignments of error is denied, and the judgment of the trial court affirmed. GATES, J., concurs in result.