Burd v. Meader

GATES, P. J. While this appeal was taken from- the judgment and from, the order denying new trial, appellants have waived their appeal from the order so that the matters now before us relate merely to the appeal from the judgment. Respondent has made the unusual motion, for which we can find no precedent, for the striking out of the essential portion of appellants’ brief. The reason therefor is is that appellants’ claimed ground of relief is not within the issues raised by the pleadings and that there is nothing in the record upon which to. base it. The point sought to be made by appellants in the argument is that the findings do not’ support the judgment because there is no finding to the effect that the claim against the defunct bank was ever presented to the superintendent of banks. Rev. Code 19.19, § 8933. Inasmuch as the record before us does not disclose that such point was raised in the court below, it is not proper to raise it for the ¡first time on appeal. Appellants have not asked for oral argument, and there is no good reason why respondent should be.put to the trouble, expense, and delay of presenting a brief. We will treat respondent’s motion to strike as a waiver on his part of the right to file brief and will affirm the judgment upon the ground above stated. We might also base affirmance upon the ground that appellants’' so-called assignments of error present nothing for review. They are as follows: (1) “That the com- plaint is insufficient to support the judgment”; (2) “that the findings of fact are insufficient' to support the conclusions of law and judgment.” These assignments merely assert error, but do- not point out error. Supreme Court Rule 4; Hedlun v. Holy Terror. Mining Co., 16 S. D. 261, 281, 92 N. W. 31, 36; Mahoney v. Smith, 41 S. D. 278, 170 N. W. 140; State ex rel. McCoy v. Farmers’ Co-op. Packing Co., 50 S. D. 627, 211 N. W. 602. The judgment and order appealed from are affirmed. SHERWOOD and CAMPBELL, JJ., absent and not sitting.-