Hultberg v. Anderson

• Decision Date: 13 February 1913
• Docket Number: 1,970.
• Citation: 203 F. 853
• Parties: HULTBERG v. ANDERSON et al. SAME v. CHYTRAUS.
• Court: U.S. Court of Appeals — Seventh Circuit

203 F. 853

HULTBERG v. ANDERSON et al.

SAME v. CHYTRAUS.

No. 1,970.

United States Court of Appeals, Seventh Circuit.

February 13, 1913

John Barton Payne, Silas H. Strawn, and Max H. Whitney, all of Chicago, Ill., David Ritchie, of Salina, Kan., and Harris F Williams, of Chicago, Ill., for appellant.

John J Healy and E. Allen Frost, both of Chicago, Ill., for appellee.

Before BAKER, Circuit Judge, and LANDIS, District Judge.

BAKER Circuit Judge.

Appellee presents his motion that the appeal be dismissed on the ground that this court lacks jurisdiction to entertain it by reason of appellant's failure to file with the clerk of the trial court an assignment of errors before the appeal was allowed.

Rule 11 of this court (150 F. xxvii, 79 C.C.A. xxvii) requires such a filing, and declares that 'no writ of error or appeal shall be allowed until such assignment of errors shall have been filed. ' When this appeal was allowed in open court at the time the decree was announced, no assignment of errors had been filed. If strict compliance with the above-quoted portion of rule 11 is jurisdictional, the subsequent filing of the assignment of errors, with leave of the trial court and before the transcript of the record was prepared and filed in this court (all within the statutory time for taking the appeal), was without avail, and this court would have no lawful right to look into the record for any purpose.

In determining whether the aforesaid provision is jurisdictional or merely directory of practice, it should be read in pari materia with subsequent parts of the same rule. 'Such assignment of errors shall form part of the transcript of the record and be printed therewith. When this is not done counsel will not be heard, except at the request of the court, and errors not assigned according to this rule will be disregarded, but the court at its option may notice a plain error not assigned. ' Taking the rule as a whole, we are of the opinion that this court has jurisdiction of a cause wherein a transcript of the proceedings and judgment or decree has been duly filed in this court, whether an assignment of errors is in the transcript or not, and may exercise its jurisdiction either by punishing the appellant with a dismissal for noncompliance with the practice rule, or by hearing the controversy and deciding the merits. This result is confirmed by considering the purpose of having an assignment of errors in the record, namely, to advise the appellee of the contentions he has to meet, and to lessen the labor of the court in getting hold of the case. If, as is admitted in the present instance, but a single question is involved, and that question is apparent from a reading of the decree, an assignment that the appellant contends the question was erroneously decided by the trial court would neither enlarge the information of the appellee, nor assist the court in understanding the question. A construction of the rule which would make an idle formality an indispensable condition of being heard should not be adopted, if any other construction is reasonably possible.

In the Fifth Circuit the Court of Appeals has decided that compliance with the provisions of rule 11 respecting assignments of errors is not jurisdictional. Dufour v. Lang, 54 F. 913, 4 C.C.A. 663. Cases relied on by appellant do not seem to us to sustain the contention to the contrary.

In Mast v. Superior Drill Co. (Sixth Circuit) 154 F 45, 83 C.C.A. 157, the assignment of errors did not comply with the requirements of rule 11, and was disregarded; that is, in legal effect there was no assignment of errors....