Baskerville v. Thomas

• Decision Date: 23 October 1913
• Citation: 143 N.W. 371,32 S.D. 432
• Parties: BASKERVILLE v. THOMAS et al. [d]
• Court: South Dakota Supreme Court

143 N.W. 371

32 S.D. 432

BASKERVILLE v. THOMAS et al. ^[d]

Supreme Court of South Dakota

October 23, 1913

Appeal from Circuit Court, Brown County; Frank McNulty, Judge.

Action by M. R. Baskerville against R. F. Thomas and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Loucks Mather & Stover and J. G. McFarland, all of Watertown, for appellant.

Williamson & Williamson, of Aberdeen, for respondent.

SMITH J.

A preliminary matter must first be disposed of in connection with this appeal. The action was tried to a jury, and on March 7, 1912, a verdict for defendant was returned by direction of the court upon which judgment was entered March 8, 1912. The appeal is from the judgment and an order overruling motion for a new trial. Appellant's brief was filed December 6, 1912, and respondent's brief January 9 1913. At the opening of respondent's brief, objections were made to the consideration of any matters sought to be reviewed on appeal, among which was the specific objection that no assignments of error are contained in the brief, and that the brief contains no statement of facts, such as is necessary to an understanding of the alleged errors relied upon and discussed in the brief-citing State v Doran, 28 S.D. 486, 134 N.W. 53.

The cause was placed on the April, 1913, calendar, and assigned for argument on May 10, 1913, at which time counsel for appellant and respondent appeared and argued and submitted the cause. Upon the oral argument, respondent's counsel vigorously urged the objection that appellant had made no assignments of error, in compliance with the rules of the court. The cause was argued and submitted by appellant; but no application was then made for permission to make proper assignments of error. After argument and submission of the appeal, and on May 15, 1913, appellant's counsel made application for an order to show cause, returnable June 6, 1913, why leave to file a supplemental brief containing assignments of error should not be granted. In the affidavit for the order to show cause, appellant's counsel say: "In making up such brief, your affiant had consulted the opinion of the court in the case of State v. Doran, 28 S.D. 486, 134 N.W. 53, and was of opinion that appellant's brief as made was sufficient to apprise the court and counsel of the errors complained of, and that no further assignment of error was necessary."

The opinion in State v. Doran was handed down January 17, 1912, nearly a year prior to this appeal, and, during the year intervening, has been many times cited by this court in its decisions. The affidavit of appellant's counsel expressly avers that this appeal was taken under the provisions of chapter 15, Laws 1911, which was interpreted by this court in State v. Doran. In that case this court said: "Chapter 15 of the Laws of 1911 has not in any manner modified or changed the requirements of the law and the rules of this court relating to assignments or specifications of particular errors upon which a party will rely on a motion for a new trial or upon appeal to this court." Appellant's application for leave to file a supplemental brief containing assignments of error long after final argument and submission of the cause appears to be founded upon some alleged misinterpretation of the ruling in State v. Doran. No change whatever has been made either in the rulings or the rules of this court relating to assignments of error since that decision, and under the facts disclosed in this application we are wholly unable to conceive of any just reason for relieving appellant from the difficulties arising from a total disregard of its decisions.

Chapter 15, Laws 1911, expressly requires that appellant file with the clerk and have attached to the transcript specifications of error. The purpose of this provision is to inform the opposite party of the particular matters specified as errors, so that he may see that the transcript covers all matters material to the specifications filed. Where no specifications are filed with the transcript as required by the statute, the adverse party is safe in ignoring the transcript, for the reason that it cannot be considered either by the trial court upon motion for a new trial or by the appellate court. No specifications of error were attached to or filed with the transcript in this case.

Certain purported specifications were attached to and made part of the notice of intention to move for a new trial; but such specifications were a nullity, because the motion was to be made upon a record to be settled, and not upon the minutes of the court, and the purported specifications attached to the notice of intention were not even filed until after the statutory period had elapsed. The transcript was filed June 18th, and specifications should have...