Hepner v. Wheatley
| Decision Date | 30 December 1913 |
| Citation | 144 N.W. 923,33 S.D. 34 |
| Parties | HEPNER v. WHEATLEY. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Miner County; Alva E. Taylor, Judge.
Action by John S. Hepner against Grant Wheatley. Judgment for plaintiff, and defendant appeals. On motion to strike appellant's brief from the files, motion dismissed.
C. C Caldwell, of Howard, for appellant.
E. H Wilson, of Salem for respondent.
Respondent seeks an order striking appellant's brief from the files of this court, and he urges, as grounds for such an order (1) That the said brief was not printed in conformity with rule 10 of the rules of this court (140 N.W. ix); in that "said brief contains but 26 lines instead of 28" to the printed page; (2) "that no reference is made in said brief as to the service of a notice of appeal upon the respondent's attorney, or upon the clerk of the circuit court, *** nor is any reference in said brief made to the giving, filing, or service of an undertaking on appeal, *** nor any notice or reference made to the serving or filing with the clerk of the Supreme Court of a copy of the notice of appeal in said action." Rule 10 provides its own and an ample remedy for any breach thereof, in that it provides that, when a brief which fails to conform to such rule "is offered for filing, the same shall be refused by the clerk and immediately returned with a statement of the objections thereto." The clerk did not reject appellant's brief because it conformed strictly to rule 10-it was printed in 12-point type and had 26 lines to the page. See rule 10 (140 N.W. xiii) as amended April 29, 1913.
While it is true that there is nothing in appellant's brief showing what his appeal is from, and in fact nothing which expressly shows that the cause is in this court upon appeal yet respondent has cured such defect by stating, in his brief, that defendant "appealed *** from the order overruling the motion for a new trial," and by setting out in full the notice of appeal which he claims was served.
While what we have said above disposes of the merits of respondent's motion, yet we deem this an opportune time to, and welcome the opportunity thus given us to, offer some suggestions as to what should properly appear in briefs filed in this court; the briefs heretofore filed in this court cannot but impress one with the fact that, even among the oldest and ablest practitioners at our bar, there is a wide divergence in opinions as to what such briefs should contain.
It is our desire to simplify the practice on appeal, and thus prevent the incumbering of briefs with matters not necessary to a full and clear understanding of the merits of the appeal. Realizing that the action or proceeding, wherein there is a failure to properly settle the record below, or where the proper steps are not taken by the party moving for a new trial, or where the appeal to this court is not properly taken and perfected, is the exception and not the rule, and believing it to be far better to require the respondent to disclose that a particular case comes within such exception, rather than to require the appellant in every case to incumber his brief with recitals which would, in the vast majority of cases, serve no useful purpose, this court, in State v. Pound, 143 N.W. 778, declared: "That a record was properly settled, that a motion for new trial made by an appellant was properly and timely made, and that the appeal was properly perfected, will all be assured without any showing in appellant's brief that the several steps were properly and timely taken; if respondent wishes to raise any question upon any of these matters, he should do so by an additional statement in his brief, setting forth the material facts as they appear of record, which statement will be taken as true unless questioned in an additional brief filed by appellant." But in the same decision we said: "Nothing said herein should be taken as excusing appellant from setting forth in his brief every fact and thing necessary to fully present the merits of every assignment of error relied upon, and to show that such errors were prejudicial."
Appellant's brief should state facts showing that this court has acquired jurisdiction of the cause; there should therefore be a statement that an appeal has been perfected; we will assume such a statement to be true unless the contrary is disclosed by respondent's brief. Appellant's brief should disclose what the appeal is from; a plain statement covering this matter is all that is necessary; we will assume the truth of such a statement unless...
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