Wetzel v. Hobbs

31 So. 2d 639 | Ala. | 1947

The appeal is not properly before this court for consideration in consequence of a total failure to comply with Supreme Court Rules 1 and 10, Code 1940, Title 7, Appendix.

Rule 1, requiring assignments to be written upon the transcript concisely pointing out the errors relied on for a reversal, is in the nature of a rule of pleading and, in the appellate court, performs the same office in all material respects as the initial pleading in a court of original jurisdiction. Precision is of the essence of this rule of practice. Kinnon v. Louisville N. R. Co., 187 Ala. 480, 481,65 So. 397; 3 C.J. 1328, § 1461, 4 C.J.S., Appeal and Error, § 1217. Under the rule no question is reserved for decision which is not embraced in a due assignment of error, Halle v. Brooks,209 Ala. 486, 96 So. 341, and failure to substantially comply with the rule requires an affirmance of the judgment appealed from. Nichols v. Hardegree, 202 Ala. 132, 79 So. 598, and cases cited.

As respects Rule 10, while we have said its provisions will be liberally construed, yet there must be sufficient compliance by tendering brief and argument in support of an adequate assignment of error that the court may ascertain the point relied on for a reversal. Ogburn-Griffin Gro. Co. v. Orient Ins. Co., 188 Ala. 218, 224, 66 So. 434; New York Life Ins. Co. v. Mason, 236 Ala. 44, 180 So. 775.

Neither of these rules has been complied with in the slightest degree and the judgment appealed from must be affirmed.

It may also be noted, however, that the appeal is merely on the record proper. The purported statement of facts sought to be incorporated in the transcript by appellant was stricken by the trial court and hence there is nothing before us for consideration but the record proper, which appears in all respects regular.

In any event, therefore, the judgment is due to be affirmed. It is so ordered.

Affirmed.

GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.