McWaid v. Darnell

WHITING, P. J. Lome 8o assignments of error are presented in the printed record. Mloire than 70 of these question the correctness of the trial1 -court’s -rulings upon receipt of evidence; others question the sufficiency of the evidence to- support the verdict of the jury; while the others: announce error in the trial court’s refusal- to give certain- instructions and in its giving of certain other instructions-. [1] There is no record upon which we can -consider the rulings upon evidence. The statement of the trial proceedings, contained in .appellant’s brief, gives what purports1 to- be the substance of the testimony of' the various witnesses, but does not set forth a single question asked, any -objection, made thereto-, or .the ruling made upon any objection!. The ’specifications- of error forming -part of the settled- record and the assignments of .error -presented to this court both set forth, -certain questions which appellant claims were asked, and su-c-h specifications! arid assignments assert error in the court’s- ruling on objections- interposed to- receipt of answer. In no -case -do such -specification's -or assignments disclose what objection was interposed, nor, in -case of the -overruling of the objection, what answer was -received. Section 1, c. 172, Laws 1913, provides': [71] “Appellant’s brief on appeal shall1 contain a statement of errors assigned upon' appeal together with a clear, concise, and condensed statement of the Contents of such parts of the record1 as may be necessary to- present fully to the appellate court the erhors assigned and to show that they :are prejudicial to appellant.” [2] It would be only through -am examination of the settled record, which record is not before this court, that we could get any information as regards the merits of a single one of such' specifications and assignments. In Peterson v. Miller, 33 S. D. 397, 146 N. W. 585, this court said: “Rule 6 of this court (29 S. D. Sup. Ct. Rules p. 4; 140 N. W. vii), relating to appellant’s brief (which rule is based upon chapter 172, Laws 1913), provides among other things: ‘Such brief shall contain, besides .any citation of authorities and argument, a clear, concis'e, and condensed statement of the 'Contents 'of such part or parts of the settled record1 as may he necessary to present fully to this court the errors 1 assigned and to show that they are prejudicial to appellant, setting forth so much thereof only as -is necessary to' a full understanding of all the question© presented to-this court for decision.’ A proper understanding of the ruling ¡of á court in receiving or rejecting .evidence require© that the brief shall present a statement of such of the evidence leading up to (and in some cases following) the ruling of the court as will show the bearing of the ruling upon the merits of the case. State v. Shephard, 30 S. D. 219, 138 N. W. 294.” In order to avail appelant anything, thine statement of the record as contained in aippellant’is- brief should set forth' the question asked or the offer made, the objection interposed, the ruling thereon, the exception taken, the evidence, if1 any, -received' over objection, and, in case of an exhibit excluded, the Contents' of such exhibit. All of the albloive should appear in its proper place in connection with such evidence, if any, received a-s may be necessary to show the ruling- to have been prejudicial1. [3] It does not appear from appellant’s1 brief that it contains “a statement of all the material evidience received upon the trial” as required by said section -i, c. 172, Laws 1913, and by rule 6 of the court. Therefore, under the express provisions -of such statute, this Court -has no power to examine into and pass upon the sufficiency of the evidenoe to support the verdict. Gilfillan v. [72] Schaller, 32 S. D. 638, 144 N. W. 133; Hepner v. Wheatley, 33 S. D. 34, 144 N. W. 923; Smith v. Pence, 33 S. D. 576, 146 N. W. 709; Malloy v. C., M. & St. P. Ry. Co., 34 S. D. 330, 148 N. W. 598; Fehlhafer v. Reiners, 37 S. D. 289, 157 N. W. 1058; Denton v. Butler, 37 S. D. 445, 158 N. W. 1017. [4]. Appellant assigns1 as error tire trial court’s refusal to: give two instructions asked for. The instruction's asked for were, so far as proper, contained in tire instructions, given of the court's own motion. [5, 6] Appellant contends that two instructions given were erroneous. Neither the exception' ta the instructions, the specifications of error presented' to the loiwer court, nor the assignments Of error in -this court, point out one single respect in which such instructions are erroneous. Certainly such specifications and assignments are insufficient -to call for action ¡by either court. Upon appeal, appellant has presented certain Contention's in relation to such instructions1. We have no way of knowing- whether the same matters were brought to- tire .attention of the trial court. This question was fully discussed in Hedlun v. Holy Terror Mining Co., 16 S. D. 261, 92 N. W. 31, where, after discussing in general what is meant by the word “assign” when used i-n reference to the presentation of alleged1 errors to a court, the court further said: “The rule requiring errors to1 he specifically pointed out is not merely for the. 'convenience of appellate judlges. Assignments in this court corresponding- with the specifications of error in the bill of exceptions should be so framed' ajs. to' enable this' court to: readily discern, without the aid of argument, what particular errors •are relied upon, and to determine from the record itself whether appellant’s position, was the same below as it is in this oourt. If would be manifestly unfair for appellant to here urge an objection to this instruction' to which the attention of the trial court was not directed on tire hearing of the application for a new trial.” [7] The instructions complained of were very favorable to appellant. Appellant does not seriously contend but that they contain correct abstract statements of the law, but complains that in the light -of the evidence they should not have ¡been given. Such a:'contention, even-if the'specifications of error showed that tire same 'contention' was urged upon -motion for new trial, could not [73] be considered1 by us in the absence icif a printed recandl which purported to contain all the material evidence. The judgment and order appealed from, are affirmed.”