Swain v. Hoberg

Mr. Presiding Justice Huffman delivered the opinion of the court. This case was previously before this court and reported in 281 Ill. App. 203. Appellee in that case is the appellee in this appeal. The action arose out of a collision between an automobile in which appellee was riding and an automobile owned by appellant which at the time was being operated by a cousin of appellant’s wife. On the former appeal, the judgment was reversed and the cause remanded on the ground the agency between appellant and the person operating his car was not established. That being the first consideration, the question of negligence of the respective parties was not considered. Upon this appeal, appellant makes no assignment of errors relied upon for reversal. Subsequent to the time the case had been reached on call and assigned for opinion, appellee filed her motion to dismiss the appeal on the ground that appellant had made no assignment of errors as required by the rules. Appellant thereafter filed his countermotion, setting up among other things that appellee’s motion came too late and could not be considered, because not filed until after the case had been reached on call and taken under advisement by the court for opinion. Appellant further urged that the statement of facts in his brief constituted a reasonable compliance with the rules; that appellee by filing her brief admitted the appellant’s brief was sufficient; and that an assignment of errors was not jurisdictional. Appellant asks that in the event the court should determine that he should make a statement of the errors relied upon for reversal, he be given leave to reprint his brief and argument with such assignment incorporated therein, and file same within a short day to be fixed by the court. Under the former Practice Act, the Supreme Court in the case of Armour v. Pennsylvania R. Co., 353 Ill. 575, at page 580 of the opinion, in speaking of the necessity for an assignment of errors, uses the following language: “An assignment of errors is not a mere matter of form that may be waived or dispensed with by the agreement of the parties; but it is essential to a review of the cause and in its absence the appeal or writ of error will be dismissed.” The same court in discussing this question under the present Practice Act, in the case of Gyure v. Sloan Valve Co., 367 Ill. 489, at page 492, uses the following language: “Under the former Practice act it was necessary that the assignment of errors be written upon or attached to the record. Such assignment performed the same office as a declaration in a court of original jurisdiction, and it was equally essential to form an issue in the reviewing court. The requirement was not a mere matter of form, but was one of substance. A failure to comply with it necessitated a dismissal of the appeal. . . . This requirement was eliminated by rule 36, leaving the stated provision of rule 39 as the only method of presenting an issue to a reviewing court. The importance of complying with the requirement is obvious, since without doing so an appeal is in the same condition as it would have been under the former act if no errors were assigned on the record.” Appellant’s brief under the title “Statement of Pacts,” sets out the charges contained in the several counts of the complaint; the pleas filed thereto; a short statement of the facts in the case, which is followed by reference to the verdict returned, motions by appellant, and the judgment rendered by the court. We find no statement of errors relied upon for reversal at the conclusion of the statement of the case, nor do we find embodied therein a statement of errors which the appellant seeks to urge for reversal. Rule 39 of the rules of practice and procedure provides that the concluding subdivision of the statement of the case shall be a brief statement of the errors- or cross errors relied upon for reversal. This shall be followed by the propositions of law and the authorities in support thereof. These two provisions clearly indicate that the errors and cross errors relied upon for reversal, should appear in a definite and distinct manner so that a reviewing court may know of what the appealing party complains. With respect to rules of practice and procedure, it is often not so important which way a rule is, as it is important that there shall be a rule that is definite, positive, and clearly understood, so that it can be followed safely and without question. The rules regarding the preparation of briefs are neither oppressive nor technical. They are general in character, conducive to good practice and should be generally observed. A court of review will not constitute itself an agency of appellant to search the record for the purpose of discovering errors. As individuals, there is an impulse to permit each litigant to be heard upon appeal, but the individuals are not the court. Department of Public Works & Buildings v. Legg, 374 Ill. 306, 308 et seq. Courts are legal entities, established for governmental purposes, and have a separate existence distinct from the individuals who preside over them. Rules of court are as much for the observance of the individuals performing the work of the court as they are for those who seek to bring their cases before the court for review. Otherwise, there could be no stability to the practice. The general rule has been recently announced in Department of Finance v. Bode, 376 Ill. 374, at page 376, as follows: “Rules of court are adopted to promote the work of the court and have the force of law.” The above question has never ceased to be a troublesome one, and it should be settled either by direct holding of the Supreme Court or if necessary, by amendment to the rule. It must be assumed that the rule was promulgated for some purpose. As we construe it with reference to the point involved, the purpose was to require an appellant to set out or indicate at the conclusion of the statement of the case, what ground or grounds he wished to urge for reversal. A court of review should be entitled to be apprised wherein error is claimed to exist. The motions of appellee and appellant came too late for the consideration of the court. The court cannot forego the rule in this case without accepting a position where it would be equally bound to forego the rule in every similar case. Such would nullify the rule and serve to obviate the necessity of any reference to errors relied upon for reversal being made by an appellant. This would produce an intolerable situation. For the foregoing reasons, the appeal herein is dismissed. Appeal dismissed.