Kinnon v. Louisville & N. R. Co.

• Decision Date: 14 May 1914
• Docket Number: 359
• Court: Alabama Supreme Court
• Parties: KINNON v. LOUISVILLE & N.R. CO.

65 So. 397

187 Ala. 480

KINNON v. LOUISVILLE & N.R. CO.

No. 359

Supreme Court of Alabama

May 14, 1914

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by Thomas J. Kinnon, as administrator of Frank Kinnon deceased, against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Gibson & Davis, of Birmingham, for appellant.

Tillman Bradley & Morrow and Charles E. Rice, all of Birmingham, for appellee.

McCLELLAN J.

The personal representative of Frank Kinnon, deceased, instituted this action against the appellee for damages for wrongfully causing the death of plaintiff's intestate.

Under the nomination of "assignment of error No. 1," this is the assertion made:

"That the court committed manifest error in refusing to submit the cause to the jury. Under the evidence shown in the bill of exceptions, the question of negligence should have been left to the jury."

It is insisted in brief for appellee that the quoted matter is insufficient as an assignment of error under rule 1 of Supreme Court practice. Code, p. 1506. The rule is:

"In assigning errors, it shall be sufficient to state concisely, in writing, in what the error consists, which assignment must be written upon the transcript. The words 'there is no error in the record' shall be sufficient joinder in the error."

An assignment of error in appellate procedure is a pleading, and is regarded in every material respect like the initial pleading in the trial court. The offices of an assignment of errors are: To apprise the appellate court of the specific questions, raised by specified errors asserted by the appellant, presented for its consideration; and to inform the opposite party of the matters of error relied on, so that discussion may be limited and concentrated. 2 Ency.Pl. & Pr. p. 921; 2 Cyc. pp. 980, 986, 987; Jones v. Adkins, 151 Ala. 316, 44 So. 53. Our quoted rule of practice has always been administered to effect the general purposes and fulfill the offices stated, and so to the very important end that fair and orderly processes, so necessary to the service might prevail and a just facilitation of the work of the court may obtain. As early as Brahan v. Collins Minor, 169, this court declined to accept, as the requisite specification of error, a general undesignating assertion of error by an appellant. The only relaxation the practice has had is in equity cases, where the error relied on affected the whole decree. Robinson v. Murphy, 69 Ala. 543, 546. Precision has been ever regarded as of the essence of the practice; and generality has also been always treated as offensive to a proper practice in assigning errors. And, since the long-established practice exacts specifications of error in the action of the trial court, an appellant cannot be allowed to interpret the legal effect of the action of the court and translate his interpretation thereof into an efficacious assignment of error. He must specify the action of the trial court of which he would have review and revision.

The...