Keeley v. Mutual Life Ins. Co. of New York, 7105.
| Citation | 113 F.2d 633 |
| Decision Date | 03 July 1940 |
| Docket Number | No. 7105.,7105. |
| Parties | KEELEY v. MUTUAL LIFE INS. CO. OF NEW YORK. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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George T. Evans and Gerard E. Grashorn, both of Chicago, Ill., George B. Christensen, of Chicago, Ill. (Winston, Strawn & Shaw, of Chicago, Ill., and Louis W. Dawson, of New York City, of counsel), for appellant.
James D. Murphy, of Chicago, Ill. (Albin Dommermuth and James A. Carey, both of Chicago, Ill., of counsel), for appellee.
Before TREANOR, KERNER, Circuit Judges, and LINDLEY, District Judge.
This is an appeal by the defendant from an adverse judgment in a suit by the plaintiff based upon a policy of insurance.
Plaintiff-appellee has directed our attention to the defendant's failure to file with the Clerk of the District Court a statement of the points of error to be relied upon in this court. Appellee asks for a dismissal of the appeal in reliance upon Rule 9 of this court which provides that "No appeal shall be considered unless such statement of points shall have been * * * filed." The present rules of this court became effective November 10, 1939, and by order of this court "do not apply to cases in which an appeal has been taken * * * before November 10, 1939." The instant appeal was taken on September 2, 1939, and defendant was correct in urging that rule 9 of the present rules does not apply.
But granting that rule 9 of this court does not affect this appeal, it does not follow that defendant's appeal is free from the infirmity incident to an omission of a statement of points of error. The Rules of Civil Procedure for the District Courts were in effect at the time that the instant appeal was taken and it is clear from a reading of rule 75, 28 U.S.C.A. following section 723c, that appellant was under a duty to serve upon the plaintiff and file a concise statement of the points to be relied upon by the appellant. Rule 75(a) requires the appellant to serve "upon the appellee and file with the district court a designation of the portions of the record, proceedings, and evidence to be contained in the record on appeal;" and Rule 75(d) provides that "if the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action, he shall serve with his designation a concise statement of the points on which he intends to rely on the appeal." Since defendant-appellant did not designate for inclusion "the complete record and all the proceedings and evidence in the action" he was required by Rule 75(d) to "serve with his designation a concise statement of the points on which he intends to rely on the appeal." The record discloses that defendant did serve and file its designation but does not disclose that it either served or filed a concise statement of the points on which it intended to rely on the appeal.
Rule 73(a) provides that failure to take any of the steps beyond the notice of appeal is ground for such action as the appellate court may consider appropriate, including dismissal of the appeal. If the rules of this court which became effective November 10, 1939, had been in force at the time that this appeal was taken, it is clear that the instant appeal would be dismissed. This would follow from rule 9 which, in harmony with rule 75 of the Rules of Civil Procedure, requires the filing with the clerk of the district court, for inclusion in the record on appeal, a statement of points "which shall set out separately and particularly each error asserted and intended to be urged." Rule 9 further provides that no appeal shall be considered unless such a statement of points "shall have been so filed." Furthermore, under the rules which were superseded by our present rules, there was an express provision that no appeal should be allowed until the appellant had filed with his petition for appeal an assignment of errors which should specify separately and particularly each error asserted and intended to be urged. Since under the present Rules of Civil Procedure an appeal is taken "by filing with the district court a notice of appeal" our old rule 10 unquestionably was rendered ineffective by rule 75 of the Rules of Civil Procedure.
Rule 73(a) provides that failure of an appellant to take any of the further steps to secure a review of the judgment "is ground only for such remedies as are specified in this rule or, when no remedy is specified, for such action as the appellate court deems appropriate, which may include dismissal of the appeal." No remedy is provided by the Rules of Civil Procedure for failure to serve and file a statement of the points to be relied upon on appeal and, consequently, this court must determine what action is appropriate.
It is evident that this court has treated an assignment of errors as an essential part of the record on appeal. Under our present rules it is a condition precedent to our consideration of an appeal that "the appellant file with the clerk of the district court, for inclusion in the record on appeal, a statement of points which shall set out separately and particularly each error asserted and intended to be urged."
Apparently the purpose of rule 75(d) is to insure that the matter brought up in the record on appeal is adequate to protect the interests of the appellee. If the appeal record contains less than a complete transcript of all the proceedings, including the evidence, in the trial court it is important to the appellee that he be informed of the points to be relied upon in order to determine whether or not the matter designated for inclusion is sufficient to enable him to answer the contentions of appellant. If it is not sufficient the appellee "may serve and file a designation of additional portions of the record, proceedings and evidence to be included." Obviously, if the appellant's designation includes "the complete record and all the proceedings and evidence in the action" the appeal record will be adequate for all the needs of the appellee.
But the policy of this court has been, and still is, to require a reasonably definite statement of the points to be relied upon in this court whether such points are designated "assignment of errors" or a "concise statement of points to be relied upon on appeal." And the foregoing requirement has not been affected by the quantum of the appeal record. As already suggested the purpose of rule 75 of the Rules of Civil Procedure is to insure that enough of the proceedings in the trial court be designated for inclusion, from the standpoint of both appellant and appellee, to adequately present on appeal the points of error relied upon by appellant. But our former rule 10 and present rule 9 are concerned only with the assignment of errors or statement of points to be relied upon and make no requirement respecting the inclusion of any, or all, portions of the record, proceedings and evidence in the action below. The purpose of rule 10 and rule 9 is to require systematic and orderly presentation of appellant's claims which, under our type of appellate procedure, are essentially claims of erroneous action by the trial court. The enforcement of such a rule protects the interests of the appellee but more especially facilitates the work of this court. There must be a time limit on the appellant's right to decide what questions he wishes to present to this court, otherwise the cause on appeal might pend indefinitely. This court, by rule 9, has made it necessary for an appellant to make such decision in time to file a statement of points with the clerk of the District Court for inclusion in the record on appeal.
It follows from what we have said that if our present rule 9 had been in force at the time that the instant appeal was taken it would be necessary to dismiss the appeal. But any action which we take upon the suggestion of appellee must be predicated upon a violation of the Rules of Civil Procedure; and as already stated the purpose of the particular provisions which have been violated by appellant is to protect the appellee against an inadequate record on appeal. Appellee, however has not suggested that her cause on appeal was in any way prejudiced by the failure of appellant to either serve, or file with the clerk, a concise statement of the points to be relied upon on appeal. In the absence of any claim of injury, we do not feel justified in dismissing the appeal.
For the purpose of the discussion of the merits of the cause on appeal we call attention to the following facts which were...
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