Anderson v. Larson
Decision Date | 01 June 1934 |
Docket Number | No. 7555.,7555. |
Citation | 62 S.D. 552,255 N.W. 151 |
Parties | ANDERSON v. LARSON et al. |
Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Mellette County; J. R. Cash, Judge.
Action by Melvin A. Anderson against S. J. Larson and others. From a judgment for defendant and from an order denying plaintiff's motion for a new trial, plaintiff appeals.
Affirmed.
Lars A. Bruce, of Yankton, for appellant.
M. Q. Sharpe and L. A. Bridgman, both of Kennebec, and Peterson & Barta, of Wausa, Neb., for respondent.
Section 3149, Rev. Code 1919, is as follows: * * *”See, also, rules 4 and 5 of Supreme Court Rules. Nowhere in appellant's original brief is there any attempt made to abstract the evidence received in this case, and, of course, there is not any statement to the effect that the brief contains all of the material evidence received upon trial. Appellant sets forth nineteen purported assignments of error. The first twelve of these assignments are based upon the insufficiency of the evidence to sustain certain findings of fact as made by the trial court. Assignments 13 to 17, inclusive, allege error because of the ruling of the trial court upon the admission of certain evidence.
[1][2] In the brief of the respondent the failure of appellant to abstract the evidence is called to the attention of this court, and the respondent has taken the position that the matter of sufficiency of the evidence is not before the court for its consideration. In his reply brief, appellant has apparently conceived that there is some merit to respondent's contention and has set out an “additional statement,” which to some extent abstracts the testimony of certain witnesses. However, the argument pertaining to the sufficiency of the evidence is contained in the original brief of appellant, and this court has been unable to observe the connection between much of the argument, and the brief statement of the testimony set forth in the so-called “additional statement” in appellant's reply brief. We are of the opinion that the only procedure, whereby an orderly presentation might be had in such a situation (where there has been an utter failure to abstract the testimony in the original brief and there is a desire to rely upon the insufficiency of the evidence), is to obtain permission of this court to file a new brief wherein the case is presented in the manner contemplated by the statute and rules of this court. Whether such permission will be granted will, of course, depend upon the particular facts presented. There was no request here to file a new brief. After the filing of appellant's original brief, respondent was...
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