Peterson v. Miller, 146 N.W. 585

Peterson v. Miller

146 N.W. 585 | S.D. | 1914

GATES, J.

Appellant has assigned 66 errors. The first 51 relate to- ruling’s of the trial court upon evidence. The fifty-second assignment is predicated upon the refusal of the court to- direct a verdict for defendant. The fifty-third and fifty-fourth assignments are based upon two portions of the instructions given, to the jury. The fifty-fifth to sixty-third, inclusive, are based upon the refusal of the trial court to give defendant’s requested instructions to1 the jury. The sixty-fourth assignment is the alleged insufficiency of the evidence to justify the verdict, and contains seven particulars wherein the evidence is claimed to -be insufficient. The sixty-fifth assignment is that the verdict is against law, and the sixty-sixth is the alleged error of the court in denying defendant’s motion for a new trial.

[1, 2] Rule 6 of this court (140 N. W. viii), relating to appellant’s brief (which rule is based upon chapter 172, Laws 1913), provides among- other things: “Such 'brief shall contain, besides any citation of authorities and argument, a clear, concise, and condensed statement of the contents of such part or parts of the settled record as may be necessary to present fully to this court the errors assigned and to show that they are prejudicial to appellant, setting forth so much thereof only as is necessary to a full understanding of all the questions presented toj this court for decision.” A proper understanding of the ruling of a court in receiving or rejecting evidence requires that the brief shall present a statement of such of the evidence leading up to (and in some cases following) the ruling of the court as will show the bearing of the ruling upon the merits of the case. State v. Shephard, 30 S. D. 219, 138 N. W. 294. In the present case this is not shown, nor attempted to be shown. Not only that, but under the statute and the rule of *399court -there must be a sufficient statement -of the evidence to show that the ruling was prejudicial as well as erroneous.

[3] The fifty-second -assignment, based upon the refusal of the court to direct a verdict for 'defendant, can certainly not be reviewed by this court, unless the statement contains the substance of all of the evidence.

[4] The fifty-third' and fifty-fourth -assignments show two particular portions of the instructions as given; but the appellant’s brief does not contain the instructions as a whole, nor does it purport to do so-. We cannot say, from an examination of those two particular portions of the charge, without knowing the contents o-f the -charge as a whole, whether error was or was not committed.

The same remarks apply to assignments 53 to 63, inclusive. Not knowing 'how the court charged the jury, we cannot say that the court erred in refusing to give defendant’s proposed instructions.

[5] Rule 6 of this court further provides: “Provided, however, .that whenever the appellant shall seek to- rely upon an assignment to the effect that the evidence was insufficient to support the verdict, finding, or -other decision, he shall cause it to affirmatively appear that the said statement in his brief contains a statement of all the material -evidence received upon the trial.” The appellant’s brief mánifestly not only does not, but does not purport to, contain a statement -of all the material evidence received upon the trial. There is not sufficient matter of fact contained- in appellant’s -brief to enable us to intelligently pass upon -the questions sought to he reviewed.

For that reason the judgment and order denying a new trial are affirmed.