Blue Creek Land & Live Stock Co. v. Anderson

STRAUP, C. J. This is an action in trespass. The plaintiff alleged in its complaint that it was the owner and entitled to the posses — 62 — sion of the east half of section 32 and the southwest quarter of section 33, in township 15 north, range 5 west, Salt Lake meridian, and that the defendants, without right, claimed an interest in a strip of said lands 470 feet wide along the southern portion thereof,- and had wrongfully entered and had trespassed upon it to plaintiff’s damage. The defendants denied plaintiff’s ownership' and right of possession to all the lands described in the complaint, and that they had entered or had trespassed on any part thereof. They alleged that .they were the owners and entitled to the possession of parcels of land in sections 4 and 5 in township' 14 north, range 5 west, Salt Lake meridian, and lying immediately south of the lands described in plaintiff’s complaint; that plaintiff’s cause of action was barred by the statute of limitations, and pleaded an estoppel resulting from possession and the making of'valuable improvements. The case was tried to the court and a jury. A verdict was rendered in favor of the defendants, upon which a judgment was entered on the 14th day of March, 1907. The court gave plaintiff thirty days’ additional time, or to and including the 18th day of April, within which to file a notice of intention to move for a new trial. Within such time, and on the 30th day of March, the plaintiff served and filed such a notice on the grounds of (1) insufficiency of evidence to justify the verdict and that the verdict is against law; and (2) error in law occurring at the trial and excepted to by the plaintiff. On the 11th day of May, nearly a month after the time had expired in which to serve and file a notice of intention to move for a new trial, the plaintiff made application to amend the notice by adding a new ground, that of newly discovered evidence, supported by affidavit showing the discovery and materiality of the evidence. The court on the defendant’s objection refused the amendment. The motion was submitted on the original notice as served and filed, and was on a subsequent day overruled. The ruling refusing the amendment is expressly assigned as error. — 63 — Tbe question is: Can a notice of motion for a new trial be amended by adding thereto a new and independent ground. therefor after the expiration of the time allowed by the statute or enlarged by the court in which to serve 1 and file such a notice of motion ? The authorities are to the' effect that the court in such case is without authority to permit such an amendment. (Dutton v. Seevers, 89 Iowa 302, 56 N. W. 398; Aultman, Miller & Co. v. Leahey, 24 Neb. 286, 38 N. W. 740; Perry v. Eaves, 4 Kan. App. 26, 45 Pac. 718; State v. Mason, 18 Mont. 362, 45 Pac. 557; Culp v. Steere, 47 Kan. 746, 28 Pac. 987; Packer v. Doray, 98 Cal. 315, 33 Pac. 118.) The original notice as filed was on the grounds of insufficiency of evidence to justify the verdict and errors in law occurring at the trial. The proposed amendment, newly discovered evidence, was not germane to anything contained in the original notice, but added a new and independent ground for the motion, and was, in effect, an offer to- file a new notice. If the amended notice had been an amendment of anything contained in the original notice, or had properly specified something that was insufficiently specified in the original notice, we would have before us another question. We think no error was committed in the ruling. The only other point discussed by appellant is the insufficiency of evidence to justify the verdict, or that the verdict is contrary to and against the evidence. At the outset counsel for respondent has challenged our authority to review such a question because the matter was not sufficiently assigned as error to entitle us to review it. The only assignment touching upon the matter is. the general assignment that “the court erred in denying plaintiff’s motion for a-, new trial.” It is' argued that since the motion for a new trial was based on the ground, among other grounds, of insufficiency of evidence to justify the verdict, the general assignment that the court erred in overruling the motion is sufficient to properly bring before us for review the question of insufficiency of evidence, as well as all other matters stated — 64 — in the notice as grounds for a new trial. If the argument is sound, it leads to the conclusion that, if a motion for a new trial is made on all the seven grounds enumerated in the statute — (1) irregularity in the proceedings, etc., (2) misconduct of the jury; (3) accident or surprise; (4) newly discovered evidence; (5) excessive damages; (6) insufficiency of evidence to sustain or justify the verdict or decision; (7) error in law occurring at the trial — a general assignment that the court erred in overruling the motion would bring before us for review, not only all portions of the charge to which exceptions had been taken, the refused requests, the rulings made in admitting and excluding evidence, and all other rulings made during the trial, but also all matters and things pertaining to the six other grounds stated in the motion for a new trial. To what specific matter or thing would such a general assignment point? How could it be said that such a general assignment would apprise the appellate court of the specific questions presented for its consideration, and would fairly inform the opposite party of. the points intended to be relied upon as a guide in the preparation of his brief, or that discussion and consideration could be limited to any specific point? (Smith Table Co. v. Madsen, 30 Utah 297, 84 Pac. 885.) Rule 26 (97 Pac. x) of this court provides: “Each alleged error shall be separately stated. When the alleged error is upon the ground of the insufficiency of the evidence to sustain or justify the verdict or decision, the particulars wherein the evidence is so insufficient shall be specified.” This rule is a substantial copy of the rule of the Supreme Court of Colorado, and is similar to the rules of courts in many other jurisdictions. We regard the rule a wholesome one. One may, of course, assign as error the 2 overruling of a motion for a new trial. In doing so it is no hardship to require the grounds to be stated upon which it is claimed the court erred in overruling the motion and to assign such matter as error; and, if it is on the ground of insufficiency of evidence to sustain or justify the verdict — 65 — or decision, to state tbe particulars wherein it is claimed the evidence is insufficient. The purpose of such specification is obvious. It is necessary in the preparation of the abstract to enable the adverse party to suggest intelligently such amendments as he may deem important to the just determination of the case, to enable him to properly prepare his brief, and to fairly apprise him and the court of the point or points on which the appellant will rely in respect of the insufficiency of evidence. If such specification be not made, and if the evidence is voluminous and the questions at issue perplexing, the respondent is placed at a disadvantage in the preparation of his brief and on the argument of the case for want of .opportunity for previous preparation in collating the evidence and showing its force and effect as applied to the questions in issue. It may, however, be said that by reading the record it may he seen that the defendants’ affirmative defenses of estoppel and bar of the statute were wholly unsupported by-evidence and substantially abandoned, that the evidence without conflict established plaintiff’s ownership' and right of possession to the quarter and half sections of land described in the complaint, and that the real dispute arose over a strip of land 410 feet wide, and that the controversy involved the boundary line of townships. 14 and 15, and especially the location of the northwest corner of township- 14, which is also the southwest corner of township 15 as originally surveyed and established by the United States government survey; the plaintiff in that regard claiming the comer so established to be 470 feet south of the place claimed by the defendants. But the specification of the grounds, of insufficiency is the essential element to properly apprise us and the adverse party o-f the points intended to be relied on in such respect. The evidence is the mere incident. To permit a verdict or decision on appeal to he assailed on a mere general assignment of. insufficiency of evidence without a specification of particulars is tantamount to allow an ap — 66 — pellant to assert that he is not prepared to say on what point or points the verdict or decision is not sustained or justified by the evidence and to present a voluminous record and cast the burden on the court to examine it with respect to all the issues, and determine whether there is a finding on any one urisustained by or contrary to the evidence. In the case in hand from an inspection of the pleadings and the assignment of error, it necessitates the reading of the whole record, consisting of a transcript of over four hundred pages of typewriting and two hundred and fifty printed pages of abstract, to ascertain, first, the particular point or points on which it may be claimed that the evidence is insufficient; and, second, whether the claim >is well founded. On first reading the record one member of the court might read it with the object in view to ascertain whether the evidence without a substantial conflict shows title in the plaintiff to the land described in its complaint; another whether there-was sufficient evidence to justify the verdict on the ground of the bar of the statute or'on the pleaded estoppel; and still another as to whether the acts of trespass alleged in the complaint were or were not committed by the defendants. Neither member might upon first reading read the record with the object in view that the real question involved a disputed boundary line, and that the particular question desired to be presented is on the claim made that all the evidence without a substantial conflict shows it to be where claimed by the plaintiff, and that there is no substantial evidence to show it to be where claimed by the defendants, and for that reason the verdict as found by the-jury in favor of the defendants unjustified. If such were the only ground or point upon which it is claimed the verdict is not justified, a specification of such particulars could easily have been made in a very few words. No particular form of specification was necessary. All that the appellant was required to do was to sufficiently point out to the adverse party and to the court the particular ground-upon which he relied and concerning which he claimed the — 67 — evidence did not justify the verdict. The record could then be read intelligently and with some object in view. No sufficient assignment of error in this regard having been made, we are not justified to enter upon a review of the question of insufficiency of the evidence. Numerous errors have been assigned relating to portions ¡of the charge to the jury. But exceptions were taken to only one portion or paragraph, and the alleged error with respect thereto not having been discussed in the brief and not pointed out, must be treated as abandoned. 3 Likewise numerous errors have been assigned relating to the court’s refusal to charge as requested by plaintiff. While exceptions were taken to the refusal to give four certain requests, still the alleged error with respect to them has also not been discussed nor pointed out. Likewise numer-Oous errors have been assigned relating to rulings of the court in permitting certain witnesses to make answers to certain questions, but none of these have been discussed, and they also must be treated as abandoned. No error sufficiently having been made to appear of record, the judgment of the court below must be affirmed, with costs. It is so ordered. FRICK and McCARTY, JL, concur.