City of Lincoln v. Sun Vapor Street-Light Co. of Canton

• Decision Date: 29 January 1894
• Docket Number: 328.
• Citation: 59 F. 756
• Parties: CITY OF LINCOLN v. SUN VAPOR STREET-LIGHT CO. OF CANTON.
• Court: U.S. Court of Appeals — Eighth Circuit

59 F. 756

CITY OF LINCOLN v. SUN VAPOR STREET-LIGHT CO. OF CANTON.

No. 328.

United States Court of Appeals, Eighth Circuit.

January 29, 1894

N.C. Abbott William, A. Selleck, and Arthur W. Lane, for plaintiff in error.

A. J Sawyer, N. Z. Snell, and A. L. Frost, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge.

The city of Lincoln, Neb., the plaintiff in error, insists that the circuit court for the district of Nebraska erred in rendering judgment against it for damages for the breach of a contract between that city and the Sun Vapor Street-Light Company of Canton, Ohio, the defendant in error. The contract was for lighting the city of Lincoln. The case was tried to a jury, and the judgment is upon the verdict. In this court it was not argued orally, but was submitted on briefs. When the writ of error was sued out, counsel for the city assigned 21 errors.

The twenty-fourth rule of this court provides that the brief of the plaintiff in error in this court 'shall contain, in order here stated:

'(1) A concise abstract or statement of the case presenting succinctly the questions involved, and the manner in which they are raised.

'(2) A specification of the errors relied upon which, in cases brought up by writ of error, shall set out separately and particularly each error asserted and intended to be urged; and in cases brought up by appeal the specification shall state, as particularly as may be, in what the decree is alleged to be erroneous. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. When the error alleged is to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it.

'(3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. * * * '(4) When there is no assignment of errors, as required by section 997 of the Revised Statutes, counsel will not be heard, except at the request of the court: and errors not specified according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned or specified.' 47 F. xi.

The entire rule is a copy of the twenty-first rule of the supreme court. 3 S.Ct. xii. Only the portion of it material in this case is quoted here. In our opinion, the strict and careful observance of this rule directs the attention of counsel and the court to the merits of the case presented, to the vital questions at issue, and excludes from their consideration frivolous and immaterial questions. If the rule is observed, the arguments of counsel and the consideration of the court are concentrated upon the important questions in controversy, instead of being scattered and issues, that, if the argument and consideration of numerous side issues, that, if at all material, are generally governed by the decision of the main questions, and in this way a just result is more speedily and certainly attained. It often occurs that, through abundance of caution, counsel assign many errors, when they obtain their writ of error, which they find it entirely unnecessary to refer to, and themselves abandon upon reflection, and after an examination of the authorities upon which they intend to rely in the presentation of their case to this court. Every gentleman of the bar understands and appreciates the necessity of concentrating and confining his own attention and investigation, as well as the attention and consideration of the court, to the crucial questions in his case. This rule enables him to accomplish this result after he has carefully examined the authorities and considered the reasons which support his positions, and when he is best prepared to select the errors he deems of importance. The rule should be carefully observed.

The brief of counsel for the plaintiff in error contains 23 printed pages. The record contains pleadings, evidence, instructions given and instructions refused, the verdict, judgment, assignment of errors, and writ of error, and covers 62 printed pages. No specification of the errors relied on which sets out separately or particularly each error asserted and intended to be urged in a separate subdivision of the brief is found. After the statement of the case, and before the argument, the following statement appears, which is the nearest approach to such a specification found in this brief:

'In discussing the law of this case we desire to urge the following points, on each of which we think the record shows that reversible error was committed in the trial court:

'(1) That under the law of the state governing the city it was necessary for the city, by its proper officers, to have first passed an ordinance authorizing such a contract before the contract could have been entered into by the city officers, and there could be no ratification of a contract made by the officers of a city without authority. The contract being void, no ratification was possible.

'(2) That before any valid and binding contract can be made by city officers, it is necessary that an appropriation shall first have been made to meet the expenses incurred, or to be incurred, under such contract.

'(3) That, in order to maintain a suit for unliquidated damages against the city, the plaintiff must have first filed with the city clerk a statement of his claim, giving his full name, the time, place, nature, circumstance, and cause of injury or damage complained of, and that such statement must have been filed within three months of the time when his cause of action accrued.

'(4) That the verdict is centrary to, and in direct violation of, the instructions of the court as given to the jury.'

Whether the reversible error here complained of was in the admission or rejection of evidence, or in the charge of the court, does not appear from this specification, nor does the substance of any evidence admitted or rejected, or any portion of the charge of the court, appear from it, nor is there any reference to the pages of the record where any of this may be found. Argument follows the statement we have quoted. But there is only one reference in the entire brief to any page of the record in support of any of the assertions or points contained in it, and that is to page 161, while the entire record contains but 62 pages. The rule declares that 'errors not specified according to this rule will be disregarded;' and it is the intention of this court to enforce this rule. This is the first case in which we have so sharply called attention to it, and, that no injustice may be done, we have carefully read this record, considered the four points urged in the statement in this brief, and are satisfied that neither of...