144 N.W. 923 | S.D. | 1913
While what we have said above disposes of the merits of respondent’s motion, yet we deem this an opportune time to and welcome the opportunity thus given us to, offer some suggestions as -to what should properly appear in briefs filed in this court; the briefs heretofore filed in this court -cannot but impress one with the fact that, even among the oldest and ablest practitioners at our bar there is a wide divergence in opinion as to. what such briefs should contain.
Appellant’s brief should state facts showing that this court has acquired jurisdiction of -the cause; there should therefore be a statement that an appeal has been perfected; we will assume such a statement to be true unless the contrary is disclosed by respondent’s brief. Appellant’s 'brief should disclose what the ap^p-eal is from; a plain statement covering this matter is all that is necessary; we will assume the truth of such a statement unless the contrary is disclosed by respondent’s brief. When an appellant assigns as error the ruling of tire trial court granting or refusing a new trial, his brief should disclose that a motion for a new trial was made, the grounds thereof, and the ruling- thereon, together with any other fact essential t'o an understanding of the merits of such assignment; this court will assume, unless the contrary appears, that -such motion was presented to the trial court in time and in a proper method; and no reference to the ■time or method of presentation need be contained in appellant’s brief undess it is upon some claimed defect in this respect that appellant is relying.
There are two matters covered by the statute and the rules of this -court (Chapter 172, Raws 1913, and rule 6 [140 N. W. viii]) which we feel cannot -be to-o strongly impressed upon the members of the bar: (1) The necessity that the statement contained in the brief not only reveal the error complained -of, but that it clearly appear that, taking -the whole record into- consideration, such error was prejudicial; (2) where appellant 'has assigned the insufficiency of the evidence to support the verdict, finding, or decision, the necessity that it affirmatively appear that his brief “contains a -statement of all the material evidence received upon the trial-and- finally in det-ar-mining what ¡the state-
What we have said above will naturally suggest the. necessity of respondent’s brief disclosing those matters necessary to prevent this court assuming that to be true which in fact is false; thus it may be necessary to incorporate parts of the “settled record” or other files, to reveal wherein appellant failed to perfect an appeal, to have a record properly and timely settled, to properly present his motion for a new trial, or to- disclose that the specification upon which appellant bases his assignment is insufficient to sustain such assignment.
The order to show cause is dismissed.