Frame v. Portland Gold Min Co.

• Decision Date: 13 April 1901
• Docket Number: 1,491.
• Citation: 108 F. 750
• Parties: FRAME v. PORTLAND GOLD MIN. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

108 F. 750

FRAME v. PORTLAND GOLD MIN. CO.

No. 1,491.

United States Court of Appeals, Eighth Circuit.

April 13, 1901

ASSIGNMENT OF ERRORS-- FILING BEFORE ISSUE OF WRIT INDISPENSABLE.

The filing of an assignment of errors before the issue of a writ of error is indispensable, under the eleventh rule of the circuit courts of appeals (32 C.C.A. xclvi.), and the writ will be dismissed if the assignment if not filed before it issues.

Syllabus by the Court

The filing of an assignment of errors before the issue of a writ of error is indispensable, under the eleventh rule of the circuit courts of appeals (32 C.C.A. xclvi.), and the writ will be dismissed if the assignment if not filed before it issues.

In Error to the Circuit Court of the United States for the District of Colorado.

This was an action by Mary Frame, the plaintiff in error, against the Portland Gold Mining Company, the defendant in error, for negligence. Judgment was rendered for the defendant upon a demurrer to the complaint, and a writ of error sued out to reverse this judgment.

Paul Reiss (A. L. Doud and A. J. Fowler, on the brief), for plaintiff in error.

James L. Blair, (James A. Seddon and Robert A. Holland, Jr., on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, delivered the opinion of the court.

A motion has been made to dismiss the writ of error in this case because the assignment of errors was not filed until after the writ was issued. Section 997 of the Revised Statutes makes an assignment of errors, a prayer for reversal, and a citation to the adverse party essential parts of the record upon which a review of the rulings of a trial court may be invoked in the appellate courts of the United States. Rule 11 of this court (32 C.C.A. cxlvi.) provides that 'the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for a writ of error or appeal, an assignment of errors which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. ' This is a just and reasonable rule. It makes the filing of the assignment of errors before the writ is allowed indispensable to its issue to the end that the judge to whom application is made for its allowance may be informed what the alleged errors are upon which the petitioner relies, and may thus intelligently decide whether or not the prayer of his petition should be granted, and also to the end that the opposing counsel and the appellate court may be informed what questions of law are raised for consideration. In the early history...