Kincade v. Mikles

• Decision Date: 17 November 1944
• Docket Number: No. 12842,12843.,12842
• Citation: 144 F.2d 784
• Parties: KINCADE et al. v. MIKLES et al. UNITED STATES FIDELITY & GUARANTY CO. v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

144 F.2d 784 (1944)

KINCADE et al. v. MIKLES et al. UNITED STATES FIDELITY & GUARANTY CO. v. SAME.

Nos. 12842, 12843.

Circuit Court of Appeals, Eighth Circuit.

October 5, 1944.

Rehearing Denied November 17, 1944.

G. Byron Dobbs, of Fort Smith, Ark. (Mr. T. B. Pryor and Mr. T. B. Pryor, Jr., both of Fort Smith, Ark., on the brief), for appellants.

Hugh M. Bland, of Fort Smith, Ark., for appellees.

Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

As originally brought this was a suit in equity by which appellees sought an injunction. By evolution effected through various amendments it became in its final form an action at law to recover damages brought by appellees as plaintiffs against Ark-La Electric Cooperative, Inc., the L. O. Brayton Construction Company, a partnership composed of L. O. Brayton, C. B. Ford, R. M. Ford, W. E. Moore and V. Forkum, and Delta Construction Company, a partnership composed of W. S. Kincade, Eva Dunn Kincade and Robert P. Kincade, because of the alleged carelessness and negligence in cutting and opening up fences and enclosures of plaintiffs, permitting cattle to escape and become lost. The action was tried to the court without a jury and resulted in a judgment in favor of the plaintiffs and against defendants W. S. Kincade, Mrs. W. S. Kincade, and Robert P. Kincade, copartners as the Delta Construction Company, and the United States Fidelity and Guaranty Company, in the sum of $3850. The court dismissed the action as to the defendants Ark-La Electric Cooperative, Inc. and L. O. Brayton and his partners.

The court found that the defendants W. S. Kincade, Mrs. W. S. Kincade and Robert P. Kincade, partners as the Delta Construction Company, had entered upon certain lands described in plaintiffs' complaint, which were under their control and possession, for the purpose of clearing a right of way for a high tension electric transmission line and of erecting along and upon such right of way transmission lines; that the right of way passed through and over the pasture lands of plaintiffs where they had 222 head of cattle enclosed by a good and sufficient fence; that the employees of said defendants W. S. Kincade, Mrs. W. S. Kincade, and Robert P. Kincade, cut and removed the pasture fences and negligently failed to restore them to their former state, as the result of which a great number of plaintiffs' cattle located in said pasture escaped; that plaintiffs expended $400 in an effort to locate and return the cattle but were unable to find 69 head of the cattle which had escaped; that the value of the cattle which had escaped was $50 a head, and that plaintiffs were entitled to recover such value, in addition to the sum of $400 expended in an attempt to find and return them to the enclosures.

The court also found that the United States Fidelity and Guaranty Company, as surety for the Kincades, had executed an indemnity bond filed in the suit as first instituted, whereby it agreed that if it should finally be determined in the action that plaintiffs have suffered any damages by reason of the matter set up in plaintiffs' complaint, or if they suffered any damage by reason of the negligence of the representatives of the Kincades, it would pay such damages not exceeding the sum of $5,000. Although the United States Fidelity and Guaranty Company was not a party to the action and did not appear therein, the court nevertheless entered a joint and several judgment against the defendants W. S. Kincade, Mrs. W. S. Kincade, and Robert P. Kincade and the Guaranty Company. Although but one judgment was entered we have here two appeals, one perfected by the Kincades and the other perfected by the United States Fidelity and Guaranty Company. The appeals are presented on one record and on joint briefs.

At the very threshold of the case, we find it necessary to consider the condition of the record. Appellants' brief contains no statement of the points relied upon and intended to be urged, as required by Rule 11(b) Fourth of this court, prescribing what must be contained in appellants' brief and reading in part as follows:

"A separate and particular statement of each assignment of error (in criminal cases), or of each point relied upon (in civil cases), intended to be urged, with the record page thereof. If an error assigned or point relied upon relates to the admission or exclusion of evidence, the statement shall quote the evidence referred to and the pertinent objections or exceptions taken, together with the rulings of the court thereon, giving the pages of the printed record on which the quotations appear."

The rule also requires that the brief contain a concise statement of each point to be argued. The appellant must set out in his brief a separate and particular statement of each point relied upon intended to be urged so as to point out what action or ruling of the trial court is urged as error and such a statement is not sufficient if it simply invites the court to search the record generally for error. Cohen v. United States, 8 Cir., 142 F.2d 861; Butler v. United States, 8 Cir., 108 F.2d 27; Ralston Purina Co. v. Novak, 8 Cir., 111 F.2d 631; American Ins. Co. v. Scheufler, 8 Cir., 129 F.2d 143; Jones v. Futrall, 8 Cir., 75 F.2d 418; E. R. Squibb & Sons v. Mallinckrodt Chemical Works, 8 Cir., 69 F.2d 685; Ford Motor Co. v. Brady, 8 Cir., 73 F.2d 248; Ed S. Michelson, Inc., v. Nebraska Tire & Rubber Co., 8 Cir., 63 F.2d 597. Here we are not called upon to determine the sufficiency of the assignments or points intended to be urged because of the total absence of any statement whatever. In general an alleged error must be presented by a proper statement of the point relied upon intended to be urged for reversal. In Cohen v. United States, supra, we said 142 F.2d 863:

"The purpose in requiring that appellant's brief contain a separate and particular statement of each point relied upon intended to be urged, is to point out to the appellate court the specific ruling or action of the trial court which is challenged as erroneous and to limit the presentation in the appellate court to the matters in the specifications as stated in the brief."

The appellate court may, however, in its discretion consider a plain error apparent on the face of the record, even though not assigned, to avoid a manifest miscarriage of justice. Wayne v. New York Life Insurance Co., 8 Cir., 132 F.2d 28. This is particularly true if the error involves a question of jurisdiction. Rogers v. Penobscot Mining Co., 8 Cir., 154 F. 606.

On the face of this record we think it was manifestly erroneous for the trial court to enter judgment against appellant United States Fidelity and Guaranty Company. It was not a party to...