Hill v. City of Tacoma

• Decision Date: 03 July 1952
• Docket Number: No. 32021,32021
• Citation: 246 P.2d 458,40 Wn.2d 718
• Court: Washington Supreme Court
• Parties: HILL, v. CITY OF TACOMA.

Page 718

40 Wn.2d 718

246 P.2d 458

HILL, v. CITY OF TACOMA.

No. 32021.

Supreme Court of Washington, Department 1.

July 3, 1952.

Clarence M. Boyle, Corp. Counsel, Dean Barline, Horace G. Geer, Fred C. Dorsey, and W. L. Brown, Jr., Tacoma, for appellant.

Clarence E. Layton, Tacoma, for respondent.

GRADY, Justice.

The appellant has taken an appeal from a judgment of the superior court awarding respondent damages arising out of personal injuries sustained by him. The judgment was based upon findings of fact made by the court to the effect that appellant had kept and maintained one of its public sidewalks in a defective and dangerous condition, that respondent caught one of his feet in the defect, fell and was injured, and that he was free from fault.

The appellant seeks a review of the evidence and a determination made that it does not support the findings of fact. We must decline to make such review because of noncompliance by appellant with Rule 43 of Rules of the Supreme Court, Rules on Appeal, 34a Wash.2d 47. The rule is as follows:

'No alleged error of the superior court will be considered by this court unless the same be definitely pointed out in the 'assignments of error' in appellant's brief. In appeals from all actions at law or in equity tried to the court without a jury, appellant must point out by number and description the findings of fact upon which he predicates error, otherwise the findings will be accepted as the established facts in the case. * * *'

The findings of fact upon which appellant predicates error are not pointed out by number and description as required by the rule.

Upon attention being called to noncompliance with the rule, appellant sought to make correction in its reply brief. We are asked to accept this method, or in the alternative to waive the rule. The argument is made that the purpose of the rule is to assist the court in ascertaining the precise grounds upon which the appellant relies, and this has been done in the reply brief. We desire to add that another purpose of the rule is to have the respondent likewise informed, so he may direct his arguments accordingly and not have to explore anticipatory fields. Attention is called to the fact that the derelication of appellant is much less flagrant than existed in the cases of Erickson v. Kongsli, Wash., 240 P.2d 1209; Huff v. Boundy, Wash., 242 P.2d 165, and J. A. Wiley Co. v. Riggle, Wash., 243 P.2d 493, in all of which we declined to review the evidence and...