99 P. 444 | Utah | 1909
This is an action in trespass. The plaintiff alleged in its complaint that it was the owner and entitled to the posses
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.
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
“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
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
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.
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.