25 Cal. 478 | Cal. | 1864
The respondent made a preliminary motion to dismiss the appeal, on. the ground that the record contains no statement on appeal, and no assignment of errors, or statement of the grounds upon which appellant relies. The motion to dismiss was argued orally, and the case at the same time submitted on its merits on briefs, subject to the motion to dismiss.
We have frequently had motions to dismiss appeals from orders denying new trials, and from judgments, on the general ground that there was no assignment of errors in the record. But the term, “ assignment of errors,” seems to be used somewhat loosely and vaguely. The real difficulty to be reached—
The term assignment of errors is not used in our Practice Act. An assignment of errors, in the strict common law sense of the term, was in the nature of a pleading, to which there was a demurrer or rejoinder in error. (2 Tidd’s Prac. 1,168 ; 3 Steph. Com. 644; 2 Burr. Prac. 147.) It did not constitute a part of the transcript, but was founded upon it, and was filed in the appellate Court at, or subsequent to the time of filing the transcript. It is hardly necessary to say, that the filing of such an assignment of errors was never required under the system of practice in this State. Yet we find the term often used in our reports in a sense somewhat different from, but analagous to its common law sense. Thus, in The People v. Goldbury, 10 Cal. 312, People v. Comedo, 11 Cal. 70, and Smith v. Sayre, 11 Cal. 129—generally cited in these discussions—the appeals were dismissed; and in Squires v. Foorman, 10 Cal. 298, the judgment was affirmed for want of “ an assignment of errors.” These cases, except the last, are imperfectly reported, and we have taken the trouble to examine the records with a view of ascertaining, if possible, the precise circumstances under which they were decided; the sense in which the term, “ assignment of errors,” was used by the Court, and the practice which has heretofore prevailed in such cases. So far as we are able to ascertain the facts from the records, the appeals in these several cases were not dismissed, nor the judgments affirmed on motion of the respondents’
In such cases the Court, (not feeling called upon to perform the duties of counsel,) upon its own motion*—as this Court has also done in several similar instances—either affirmed the judgment, or dismissed the. appeal for want of the aid of what was termed, an “assignment of errors;” that is to say, a specification of the points or particular errors relied on filed in the case, which seems to he the sense in which the term was used by the Court.
In Squires v. Foorman the appeal .was from a judgment on demurrer. The appellant filed a paper (which was no part of the transcript) purporting to be an “assignment of errors,” in the following words: “1. The Court erred in overruling the demurrer. 2. The Court erred in rendering judgment. 8. The Court erred in rendering judgment by default.”
There was no brief, and no other statement of the points. Mr. Justice Field, in deciding the case, said: “ There is not, in the strict common law sense of the term, any assignment of errors required to be filed by the appellant. What is meant by the term as heretofore used by this Court is, that a specification must be filed of the errors upon which the appellant will rely, with such fullness as will give aid to the Court in the examination of the transcript. The assignment in this case gives no such aid, but leaves the Court to grope its way through the record in search of possible errors. We have neither the túne nor disposition to make such investigation.”
Rule sixteen of the rules of eighteen hundred and fifty-seven provided that, “ To entitle the appellant to bring the cause to
The case of Barrett v. Tewksbury presents a different question. The question in that case was,-whether the document purporting to be a statement contained a sufficient specification of the grounds on which the appellant relied, to constitute a valid statement, and render it available on appeal. And this is the question which is, or should be presented, when objections are taken to statements on the motions so frequently made in this Court.
Section three hundred and thirty-eight of the Practice Act of eighteen hundred and fifty-one, in force at the time the statement in that case was prepared, provides, that the statement shall “ contain the grounds upon which he (the appellant) intends to rely on the appeal, and shall contain so much of the evidence as may be necessary to explain the grounds, and no more.”
In deciding the case Mr. Chief Justice Field says: “ The specification of the grounds is the essential element of a statement; the evidence is the mere incident. It is the statement ‘ of the case,' and not of the evidence, which is to be annexed to the record of the judgment or order appealed from. The case on appeal consists of the questions of lato or of fact raised. These must be distinctly set forth and accompanied with only so much of the evidence as may be necessary to explain and show their pertinency and materiality, and no more. The specification is necessary, in the preparation of the statement, to enable the adverse party to suggest, intelligently, such amendments as he may deem important to the just determination of the case. Without it neither the adverse party, nor the Judge, can well
And again, page 358 : “ In all future cases the specifications must be made when the statements are originally prepared. Nor is there any difiiculty in pursuing this course; but on the contrary, the labor of the parties, as well as their expenses, will be thereby greatly lessened. It is certainly a very simple matter for the party appealing to allege, either at the commencement or conclusion of his statement, that on appeal he will rely upon certain errors committed by the Court; as, for example, in admitting the testimony of a particular witness, or in excluding certain documents, or in giving or refusing certain instructions, or in making particular rulings upon the contract or subjects in controversy. When the grounds are thus specified it will be an easy matter to state so much of the evidence as may be necessary to explain and point them, and the adverse party will be enabled to suggest readily and intelligently such amendments to the statements as he may deem important to their just determination. There may be cases where equitable relief is sought, as suggested by the learned counsel of the petitioners in which the general ground of appeal will be that the decree is not warranted by the evidence; yet, even then the general ground will be found, in a great majority of instances, subject to more particular specifications—as that the evidence does not establish a contract, or show a tender, or compliance with particular condition precedent, or the like, which will constitute the matters urged upon the Court.” (For further illustrations see opinion in the case cited.)
The amendment to section three hundred and thirty-eight since the decision in Barrett v. Tewksbury, prescribes these essential requisites in still more precise and emphatic language. It now provides that the appellant in his statement “ shall state specifically the particular errors or grounds upon which he intends to rely on the appeal.” If there ever was room for doubt as to what was necessary to state, there can be none since the amendment of the Act. It is manifest that the Legislature intended by this language something more than a specification of the grounds of appeal in general terms, such as those in the so called assignment of errors in Squires v. Foorman, or such as the general language of the statute in enumerating the cases for granting new trials, in section one hundred and ninety-three of the Practice Act. It was intended that the specific error should be distinctly pointed out. It is as easy to do this in the statement as in points or briefs, and such is the requirement of the statute. It is also easy to indicate the ground so distinctly that there can be no room for discussion here as to whether “ the errors or grounds upon which the appellant intends to rely” are specifically stated or not. Hereafter, if the grounds are so loosely or defectively stated as to admit of argument as to their sufficiency, it must not be expected that this Court will adopt a liberal construction for the purpose of saving the appellant’s case.
It is optional with the appellant, when he appeals from the judgment alone, whether he will make a statement or not. If he makes no statement, it is not necessary that there should be in the transcript, or on file, what has heretofore been denom
In this case there is no statement on appeal; but the appellant was not required to make one, and the appeal, so far as it is taken from the judgment, cannot be dismissed. It must, however, rest upon the judgment roll alone. But an appeal is also taken from the order denying the motion for new trial, and the objection to the sufficiency of the statement applies to this branch of the appeal. The statement on motion for new trial was made under section one hundred and ninety-five, as amended in 1861, and the sufficiency of the statement must be determined by a construction of that section as it then stood. It provides that the party intending to move for a new trial shall prepare “ a statement of the grounds upon which he intends to rely * * .”
“The grounds of the motion shall be specifically set forth, and the statement shall contain so much of the evidence, or reference thereto, as may be necessary to explain them, and no more.” The language here is similar to that of section three hundred and thirty-eight, relating to statements on appeal, since the amendment of that section in 1864, and more specific than the language of that section as it stood at the time of the decision in Barrett v. Tewksbury. The same construction must be given to both sections.
In Wing v. Owen, 9 Cal. 247, plaintiff recovered. The defendant made what was intended to be a statement on
If then, “ the grounds of the motion,” as thus defined, are not “specifically set forth” in the statement in this case, there is no such statement as is required on motion for new trial, and nothing on which the Court was authorized to act.
The only statement of the grounds is an enumeration of the
First—Insufficiency of the evidence to justify the verdict.
Second—The verdict and judgment are against law.
Third—Excessive damages as given by the jury.
Fourth—Error in law occurring at the trial and excepted to by the defendants; without in the remotest degree indicating wherein the evidence was insufficient, the verdict against law, or the error in-law at the trial occurred.
The third specification, as here stated, is not recognized by the statute as a cause for new trial, for there is no averment or pretense that the damages were “given under the influence of passion or prejudice.”
We do not think the grounds are “specifically set forth,” within the rheaning of the statute as before construed. There is nothing here that indicates the specific errors or grounds relied on. The specification affords to the other party no information that is of any service to him in suggesting amendments to the statement. Upon such a specification he could not safely accept a statement that did not contain everything that transpired at the trial j and statements under such a system would be incumbered with hundreds of pages of matter worse than useless—one of the very evils, which the requirements of the statute were intended to obviate. The provision is that the “grounds” shall be “specifically set forth,” and “the statement shall contain so much of the evidence * * * as' may be necessary to explain them, and no more.” If the opposite party knows the precise grounds relied on, be will have no difficulty in determining exactly what evidence is necessary to explain them. But if the grounds are stated in terms so broad as to include everything that transpired at the trial, it is impossible for him to know what is necessary to be included to explain the grounds, or what may safely be omitted. Such a statement affords no information whatever, and so far as any useful purpose is concerned, it might just as well be altogether omitted. We are disposed to carry out these provisions of the
Whenever the statement, on motion for new trial, or on appeal, does not conform to the requirements of the statute as construed in this opinion, and the objection is made at the proper time, it will be disregarded, and such errors only considered as are disclosed by the judgment roll.
When the appeal is from the order denying a motion for new trial, and the motion was not based on such a “statement of the grounds” as is herein approved, or upon affidavits, the practice will be to affirm the order, or, on motion, to dismiss the appeal.
The only point made on the judgment roll in this case is, that the issues of fact are not found by the jury, and the verdict is insufficient to sustain the judgment. The action is for the recovery of the possession of land and damages for detention. The verdict is, “ We, the jury in this cause, find a verdict in favor of the plaintiff against defendants for the possession of the premises described in the complaint herein, and the sum of one hundred and sixty-five dollars damages.”
We must presume the Court correctly instructed the jury as to what was necessary for them to find to entitle the plaintiff to recover the possession of the premises. We think this is substantially a general verdict covering all the issues. The words “for the possession of the premises described in the complaint herein” do not limit the finding to any particular fact or issue.
We deem it proper to say here that we have come to the conclusion that the statement on motion for a new trial in this case must be disregarded as insufficient with less reluctance, for the reason that we are satisfied upon examination of the record that no injustice will result from the judgment if unreversed. The substantial question on the validity of the grant by Alcalde Geary was determined in White v. Moses, 21
Judgment affirmed.