Warwick v. Bliss

• Decision Date: 10 April 1922
• Docket Number: 5045
• Citation: 45 S.D. 388,187 N.W. 715
• Parties: JOHN A. WARWICK, Plaintiff and respondent, v. P. D. BLISS, Defendant and Appellant.
• Court: South Dakota Supreme Court

45 S.D. 388

187 N.W. 715

JOHN A. WARWICK, Plaintiff and respondent, v. P. D. BLISS,

Defendant and Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Louis L. Fleeger, Judge

#5045--Motion granted in part, denied in part.

George J. Danforth

Attorneys for Appellant.

Kirby, Kirby & Kirby

Attorneys for Respondent.

Opinion filed April 10, 1922

GATES, P. J.

Respondent moves the court to strike from the files and refuse to consider appellant's statement and brief, or such part thereof as may be improper upon the grounds hereinafter set forth. Respondent further asks that the appeal be dismissed upon such grounds. The motion to dismiss the appeal is wholly frivolous. No showing nor attempted showing is made to justify such relief.

Respondent insists that appellant's assertion that appellant's brief contains all of the material evidence is untrue because certain X-ray photographs were received in evidence and are not reproduced in the brief, and that without them the medical testimony becomes unintelligible. Appellant says he has in words sufficiently described the X-ray photographs for all of the purposes of the appeal. Whether this is true can only be determined by us upon the consideration of the case upon its merits. We cannot decide the question now. If respondent desires to include these photographs in his brief, he will be permitted to tax the cost of so doing if he prevails upon the appeal. If he does not prevail, and we find the X-ray photographs reasonably necessary for the determination of the appeal, we will deduct the cost thereof from the costs taxed against respondent.

Respondent says there are no assignments of error. It is true that appellant did not place his assignments of error in that part of the brief devoted to the argument, and did not follow the assignments or group of assignments with the argument pertaining thereto as in the rule provided. He printed the specifications of error that were made a part of the settled record, and prefixed them by a statement that they constituted the assignments of error upon appeal. Respondent contends that it is not necessary to print the specifications of error and again print them as assignments of error. Of course no duplication is necessary, but appellant should have printed his assignments of error in that part of the brief devoted to the argument following each assignment (or group of assignments raising the same point) by his argument thereon. Supreme Court rule 4 (170 NW vii.) The portion of appellant's brief devoted to the argument will be stricken. Appellant may within 30 days serve and file a new argument with assignments of error in accordance with the rule.

Respondent contends that, inasmuch as there was no motion for new trial, the insufficiency of the evidence to sustain the verdict cannot be considered upon an appeal. Such is the rule where the insufficiency is raised after verdict. Here the error assigned is the refusal of the trial court to direct the verdict for defendant. Such a refusal is designated as an...