Daly-West Mining Co. v. Savage

• Decision Date: 28 October 1918
• Docket Number: 4914.
• Citation: 253 F. 548
• Parties: DALY-WEST MINING CO. et al. v. SAVAGE et al. [a1]
• Court: U.S. Court of Appeals — Eighth Circuit

253 F. 548

DALY-WEST MINING CO. et al. v. SAVAGE et al. ^[a1]

No. 4914.

United States Court of Appeals, Eighth Circuit.

October 28, 1918

Hook Circuit Judge, dissenting.

Hiram E. Booth, of Salt Lake City, Utah (William H. King, P. T Farnsworth, Joel Nibley, E. O. Lee, Carl A. Badger, and Benjamin L. Rich, all of Salt Lake City, Utah, and William E Hutton, of Denver, Colo., on the brief), for plaintiffs in error.

Culbert L. Olson, of Salt Lake City, Utah (Albert J. Weber, of Salt Lake City, Utah, on the brief), for defendants in error.

Before HOOK and SMITH, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge.

The brief filed by counsel for plaintiffs in error does not contain a specification of errors upon which they rely, as required by rule 24 of this court (188 F. xvi, 109 C.C.A. xvi). In City of Lincoln v. Sun Vapor Street Light Co., 59 F. 756, 8 C.C.A. 253, decided on January 29, 1894, this court announced that this rule 'will be enforced by the court, to the end that the vital issues in the case may be clearly presented. ' It has been enforced ever since. Kinser v. United States, 231 F. 856, 146 C.C.A. 52, Cooper v. Jewett, 233 F. 618, 628, 147 C.C.A. 426. The latest case is City of Goldfield v. Roger, 249 F. 39, . . . C.C.A. . . . .

The judgment must therefore be, and is, affirmed.

SMITH, Circuit Judge (concurring.)

I fully concur in the foregoing opinion and if I had any doubt upon the question raised by Judge Hook still I think there is no prejudicial error shown and the case must in any event be affirmed.

HOOK Circuit Judge (dissenting.)

Our rules of appellate practice, like those of the Supreme Court, are not rules of substantive law determining rights, but are designed merely to facilitate the machinery of justice. Being made by the court, they are applied not inexorably and literally in all cases but with a tempered consideration of their purpose and the efforts of counsel to observe them. We have so applied them in innumerable instances, and in very many in which compliance has been much less apparent than in the case at bar.

The brief for plaintiffs in error is admirable for its conciseness. True, it does not contain a formal assemblage in one place of the assignments of error relied on, but there is what I think should be regarded, consistently with our custom, as an equivalent. After a narrative of the case and of the trial the brief is divided into eight separately numbered divisions, each disclosing a matter of complaint. I will refer to but two of them, one relating to an instruction asked and refused, and the other to an instruction given. The two instructions, one denied and the other given, are antithetic, and they present a question that goes in a direct way to the very root of the verdict and judgment. At the...