60 P. 938 | Ariz. | 1900
An action was brought in the lower court by the plaintiffs, who are the appellees herein, based upon an adverse claim filed against the application for patent made by the defendant, which is the appellant herein, for certain mining claims in the Big Bug Mining District, Yavapai County, Arizona. The adverse was filed on the seventh day of May, 1897. The original complaint was filed on the first day of June, 1897. A demurrer “for the reason that the complaint does not state facts sufficient to constitute a cause of action,” and an answer entering the plea of not guilty, were filed on the fifteenth day of June, 1897, and on the thirteenth day of November, 1897, an amended answer was filed, containing the same demurrer and plea, and, in addition thereto, a general denial, and setting up the location of the several claims in dispute by the grantors of the defendant, and transfer by said grantors to the defendant. The general demurrer was sustained, and confessed by plaintiffs, on the fifteenth day of November, 1897, and, on leave granted, plaintiffs filed an amended complaint the same day. On the sixteenth day of November, 1897, defendant filed and presented a motion for judgment for the defendant on the pleadings, on the grounds that the amended complaint stated a new cause of action, and that, more than thirty days having elapsed since their, adverse was filed, plaintiffs were barred under section 2326 of the Revised Statutes of the United States. After being fully argued by counsel, the motion was denied by the court, and leave granted defendant to file an amended answer. Defendant thereafter, on the same, day, filed an amended answer to the amended complaint, being a verbatim copy of the demurrer, plea, denial, and special de
The appellant presents no assignment of errors, but submits to the court two propositions: “First, that this action was not commenced within thirty days of filing the adverse; second, that the verdict is contrary to the evidence and the weight of the evidence.” This court, as previously held in the ease of Maricopa County v. Jordan, ante, p. 4, 60 Pac. 693, (decided at the present term,) under like conditions, does not take up the legal issues involved in a case, and try them de novo, regardless of the manner in which they have been presented and tried in the lower court, or regardless of whether or not they have been presented for consideration in the lower court at all. Our statutes relating to appeals provide, among other things, “that the briefs of the plaintiff in error or appellant shall contain a distinct enumeration, in the form of propositions, of the several errors relied on, and all errors, not assigned in the printed brief, shall be deemed to have been waived.” The rules of this court likewise provide that all assignments of errors must distinctly specify each ground of error relied upon. Where no errors are assigned, and none appear on the face of the record, the judgment of the lower court will be affirmed, notwithstanding there may exist a meritorious defense, which the defendant might have urged in the court below, and which he may now stand ready to urge in this court. Defendant’s brief contains two propositions, but they are propositions of issuable facts, and do not assign or impute error in the rulings or judgment of the lower court. So that, unless error appears in the record, the judgment will be affirmed, although appellant might be able to establish both facts as set forth.
Upon the second proposition, “The verdict is contrary to the evidence and the weight of the evidence,” beyond the fact that the record does not show that the defendant moved to have the verdict set aside as against the evidence, and that neither the refusal of the court so to do or to grant a new trial on the ground that the verdict was against the evidence is assigned as error, lies the further fact that the record does contain the testimony of thirteen witnesses that affords
Street, C. J., and Davis, J., concur.