Carpenter v. Eastern Railway Company of Minnesota

• Decision Date: 14 January 1897
• Docket Number: 10,275--(189)
• Citation: Carpenter v. Eastern Railway Company of Minnesota, 69 N.W. 720, 67 Minn. 188 (Minn. 1897)
• Parties: ALBERT E. CARPENTER v. EASTERN RAILWAY COMPANY OF MINNESOTA
• Court: Minnesota Supreme Court

69 N.W. 720

67 Minn. 188

ALBERT E. CARPENTER v. EASTERN RAILWAY COMPANY OF MINNESOTA

Nos. 10,275--(189)

Supreme Court of Minnesota

January 14, 1897

Appeal by defendant from an order of the municipal court of Duluth Boyle, J., denying a motion for a new trial.Affirmed.

Order affirmed.

C Wellington and J. A. Murphy, for appellant.

McGindley & Whitely, for respondent.

OPINION

START C. J.

The plaintiff, on August 2, 1894, at Duluth in this state delivered to the defendant 10 horses, to be transported to Minto, N. D., pursuant to a stock-shipping contract, similar to the contract considered by this court in the case of Engesether v. Great Northern R. Co.,65 Minn. 168, 68 N.W. 4.This action was brought to recover damages for injuries to the horses caused by the negligence of the defendant in unreasonably delaying the transportation of the horses and in the unnecessarily violent handling of the train on which they were carried.Verdict for the plaintiff for the sum of $ 355.The defendant appealed from an order denying its motion for a new trial.

The defendant, in its original brief, assigned seven errors; but, after the time for serving its brief had passed, and only five days before the day set for the hearing of the case, it made and served a further brief, in which 37 errors were assigned, which the plaintiff refused to receive, and returned.The plaintiff claims that the additional and amended assignments of error must be disregarded, and the appeal decided on the original assignments.The claim is right, and is allowed.An appellant has no right to amend or add to his assignments of error after the time for serving them has passed, except by consent of the respondent or by leave of court.Greene v. Dwyer,33 Minn. 403, 23 N.W. 546.

The first claim made by the defendant in its brief is that the damages are excessive.We cannot consider the claim, for there is no assignment of error sufficiently specific to raise the question.The motion for a new trial herein was based upon five distinct grounds, one of which was that the damages were excessive; but the assignment of error is, simply, that the court erred in not granting defendant's motion for a new trial.Wilson v. Minnesota F. M. F. I. A.,36 Minn. 112, 30 N.W. 401.

The defendant took 14 exceptions to the charge of the trial court, some of which clearly were without merit, and assigns as error "that the court erred in its instructions to the jury, to which defendant duly excepted."This is not sufficiently specific to permit us to consider any of the alleged errors in the instructions.The defendant also submitted ten separate requests for instruction, some of which were erroneous.The court refused all of them, and the defendant assigns as error "that the court erred in refusing to give the instructions requested by defendant."This is too general.It specifies no particular request which it was error to refuse.In the case of Duncan v. Kohler,37 Minn. 379, 34 N.W. 594, the test as to the sufficiency of assignments of error was stated in these words:

"An assignment so general and indefinite as not to indicate the specific error asserted would be a mere evasion of the rule while, on the other hand, the practice of multiplying assignments by a repetition and unnecessary subdivision is a perversion of the rule, which defeats the very purposes...