Hepner v. Wheatley, 144 N.W. 923

Hepner v. Wheatley

144 N.W. 923 | S.D. | 1913

WHITING. P. J.

[1] Respondent seeks an order striking appellant’s brief from the files of this court, and -he urges, as grounds for such an order: (1) That the said brief was not printed in conformity with rule 10 of the rules of this court (140 N. W. ix); in that “said brief contains but 26 lines instead of 28” to the printed page; (2) “that no reference is made in said brief as to the service of a notice of appeal upon the respondent’s attorney, or upon the clerk of the circuit court, * * * nor is any reference in said brief made to the giving, filing, or service of an undertaking on appeal, * * * nor any notice or reference made to the serving" or filing- with the clerk of the Shpreme Court of a copy of the notice of appeal in said action.” Rule 10 provides its own and an ample remedy for any breach thereof, in that it provides that, when a brief which fails to conform to such rule “is offered for filing, the same shall be refused by the clerk and immediately returned with a statement of the objections thereto.” The clerk did not reject appellant’s brief 'because it conformed *37strictly to rule io — it was printed in 12 point type and had 26 lines to the page. See rule xo (140 N. W. xiii) as amended April 29, 1913.

[2] While it is true that there is nothing in appellant’s brief showing what his appeal is from, and in fact nothing which expressly shows -that the cause is in this court upon appeal, yet respondent has -cured such defect by stating, in his brief, that defendant “appealed * * * from the order overruling the motion for a new trial,” and by setting out in full the notice of appeal which he claims was served.

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.

[3] It is our desire to simplify the practice on appeal, and thus prevent the incumbering of briefs with matters not necessary to a full and clear understanding of the merits- of the appeal. Realizing that the action or proceeding, wherein there is a failure to properly settle the record below, or where the proper steps are net taken by the party moving for a new trial, or where the appeal to this court is not properly taken and perfected, is the exception and not the rule, and -believing it to be far better to require the respondent to disclose that a particular -case comes within such exception, rather.than -t-o- require -the appellant in every case to in-cumber his brief with recitals which woukl, in the vast majority of cases, serve n-o- useful purpose, this court, in State v. Pond, 143 N. W. 778, declared: “That a record was properly settled, that a motion for a new trial made by an appellant was pro-perly -and timely -made, and -that the -appeal was properly perfected, will all be assumed- without any showing in appellant’s 'brief that the several steps were properly and timely taken; if respondent wishes to- ra-is-e any question upon any of these matters, he should -do so by air additional statement in his brief, setting forth the material -facts as they appear of record, which statement will be taken as true unless questioned- in an -ad*38ditional brief filed by appellant.” But in the same decision we said: “Nothing- said herein should be taken as excusing- appellant from setting- forth in his brief every fact and thing- necessary to fully present the merits of every assignment of error relied upon, and to show that such .errors were prejudicial.”

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.

[4] Appellant’s brief should disclose that a record has been settled in the trial court when- such is a fact and -such fact is material ; with such statement in appellant’s brief, this court will assume that such record was properly and timely settled and certified, and that it .contained- specifications of errors and of the insufficiency of the evidence' to- sustain the verdict, finding or decision, unless the contrary is disclosed by respondent’s brief.

[5] The -statutes (section 3 c. 178, Laws 1913) require such “settled record” to contain specifications of those- errors- upon which the -party who seeks such record will rely upon motion for a new trial and upon appeal to this court; and, -if such party is relying upon the insufficiency of the evidence to- justify the verdict, finding or decision, such “settled record” must contain specifications of the particulars in which such evidence is held to-be insufficient. The statutes (section 1, c. 172, Laws 1913) require that: “Such brief shall make careful references to the pages *39of the record below showing clearly the parts of such record where errors are specified.” Rule 5 of this court (140 N. W. viii) provides: “Each assignment of error * * * shall clearly refer by number to the corresponding specification of error and shall also state the page of the settled record where such specification is to be found.” These provision® are too- frequently -disregarded by counsel. The important -part which such specifications hold in 'o-ur present practice see-ms to be overlooked by many attorneys. Without such specifications -the- settled -record provided for by chapter 178, supra, is a nullity, and no -claim- of error can be based thereon. It is therefore highly essential itha-t an appellant’s brief should either make such specifications, as appellant relies upon, a part of the statement contained in1 su-ch -brief, and then, in connection with the several assignments of error, refer to the corresponding specification by its page and- number in such nrief (which practice we commend as the better practice), or else it should comply strictly with the statute- and rule and, in connection with each assignment that is based upon- some specification contained -in the settled- record, refer -clearly to such specification by its page and numbe-r in such settled record. When the latter method is complied with, this court will assume, unless the contrary appears, -that the specifications in the “settled record” support the assignments in the brief. U-nl-ess one or the -other of the methods above noted is followed, this -court will hereafter assume that the -specifications, if any, were not sufficient to support the assignments, and every assignment whi-ch from its nature, should have been preceded by a corresponding specification in the settled record will be disregarded.

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-*40merit in ‘the brief should contain' (in orda'r to .present the merits of an assignment, we can but repeat what is emphasized in. rule 6: "Preserve everything material to the question to he decided and omit everything else.”

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.

[6] Let it always be borne in mind that this court will treat as a verity all statements contained in that part of appellant’s brief .purporting to be a statement of the record not disputed in respondent’s brief; that all additions to or corrections of such statements suggested in respondent’s brief will be raícen as correct unless disputed in a reply brief; that it is only in case of a reply brief, presenting a dispute as to the true record, that this court will examine the original -record for -the the purposes of ascertaining the truth.

The order to show cause is dismissed.