National Ass'n for Advancement of Colored People v. State, 3 Div. 996

CourtSupreme Court of Alabama
Writing for the CourtMERRILL; In the last cited case, this court, speaking through McClellan
Citation150 So.2d 677,274 Ala. 544
Docket Number3 Div. 996
Decision Date28 February 1963

Fred D. Gray, Montgomery, Robt. L. Carter and Maria L. Marcus, New York City, Arthur D. Shores, Orzell Billingsley, Jr., and Peter A. Hall, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Gordon Madison, Asst. Atty. Gen., for appellee.

MERRILL, Justice.

This appeal is from a final decree of the Circuit Court of Montgomery County, in Equity, dissolving a previously issued temporary injunction, but permanently enjoining and restraining appellant from conducting intrastate business in Alabama, and ousting appellant from this State. The decree was entered on December 29, 1961.

This appeal requires an affirmance of the decree of the lower court without a consideration of the merits of the case.

This court has one set of rules for all litigants, and all are treated alike, regardless of whom they may be. We are not a court which treats most litigants one way, but has favored and special treatment for the litigant who comes into court on an alleged racial issue.

Rules of procedure are not traps concocted to evade decisions. Our present rules were framed at the request of the bar and in consultation with a committee of the bar. They were 'adopted to facilitate business and be an aid to the court in its prompt and orderly disposition, a result in which the profession and those whom it represents are greatly interested.' Ogburn-Griffin Gro. Co. v. Orient Ins. Co., 188 Ala. 218, 66 So. 434; Bransford v. Glennon, 216 Ala. 72, 112 So. 341; Wilson v. McClendon, 259 Ala. 382, 66 So.2d 924.

Our determination of this appeal does not require examination beyond appellant's brief. The brief contains an adequate 'Statement of Case,' 'Statement of Facts' and 'Propositions of Law,' but it is the 'Argument' section which is inadequate.

Supreme Court Rule 9, requires in subsection (d), that the argument section of an appellant's brief contain 'argument with respect to errors assigned which counsel desire to insist upon.' The rule plainly states that assignments of error are to be argued in the argument section of a brief. The reason for this rule was set out explicitly by the Court of Appeals in De Graaf v. State, 34 Ala.App. 137, 37 So.2d 130, as follows: 'The office of an appellate brief is to aid an appellate court to understand quickly the issues involved, and by points, propositions and argument, supported where possible by citation of authority, present to the court the questions in controversy.'

An assignment of error is an instrument of appellate pleading, Board of Education of Colbert County v. Mitchell, 270 Ala. 594, 121 So.2d 103; Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639, and only adverse rulings of the trial court are subject to an assignment of error and reviewable on appeal, Clark v. Hudson, 265 Ala. 630, 93 So.2d 138; Central of Georgia Ry. Co. v. McDaniel, 262 Ala. 227, 78 So.2d 290.

Appellant has listed twenty-three assignments of error, but many of them are without merit because they present nothing for review. However, the mere listing of unmeritorious assignments of error is not a violation of any of the rules of appellate procedure, because those 'not substantially argued in brief will be deemed waived and will not be considered by the court.' Supreme Court Rule 9.

However, we have a rule of long standing and frequent application that where unrelated assignments of error are argued together and one is without merit, the others will not be considered. Mize v. Mize, Ala., 141 So.2d 200; Pak-A-Sak of Ala., Inc. v. Lauten, 271 Ala. 276, 123 So.2d 122; McElhancy v. Singleton, 270 Ala. 162, 117 So.2d 375; Shelby County v. Baker, 269 Ala. 111, 110 So.2d 896; Thompson v. State, 267 Ala. 22, 99 So.2d 198; Ford v. Bradford, 218 Ala. 62, 117 So. 429; 2 A Ala.Dig., Appeal & Error, k736. The reason for this rule is the same as the rule which requires assignments of error to be argued. With all of the volume of work before this court, it is simply a physical impossibility for the justices to go over every transcript of every appeal in civil cases to ascertain if reversible error may be lurking somewhere in the record. Appellants must assist the court in pointing out error if the docket of this court is to be workable. But, for insubstantial or unargued assignments of error to be lumped with seriously contested assignments of error actually makes our task more burdensome than if no assignments of error were made. For in such event, we must not only ascertain whether or not there was reversible error, but then we must comb the record to see if the error was properly raised and preserved. It was to eliminate such that the rules were promulgated.

The argument section of appellant's brief is divided into five different subdivisions, each dealing with the argument of two or more assignments of error.

Assignments of error 11 and 16 are argued together in Subsection I. No. 11 reads:

'That the Final Judgment herein entered constitutes a denial to Appellant and its members of the right to freedom of speech and freedom of association secured under the Fourteenth Amendment to the Constitution of the United States.'

This statement probably would be adequate as a proposition of law or as a conclusion in an argument, but it is not sufficient as an assignment of error. The office of an assignment of error is not to point out legal contentions but only to inform this court that appellants assign as erroneous certain named rulings. Madison Limestone Co. v. McDonald, 264 Ala. 295, 87 So.2d 539; Kinnon v. Louisville & Nashville R. Co., 187 Ala. 480, 65 So. 397.

A more specific statement was made as to assignment of error No. 17 in Roan v. Smith, 272 Ala. 538, 133 So.2d 224, than as to assignment 11 in the instant case, but we held it insufficient because it not only failed to 'state that the court erred,' but it did not 'show any way in which the court erred.'- Since assignment of error 11 was without merit and was argued together with unrelated assignment of error 16, neither will be considered by the court. Thompson v. State, 267 Ala. 22, 99 So.2d 198. We do not intimate that assignment No. 16 in the instant case presented anything for review.

In Subsection II of appellant's argument, assignments of error 5, 6 and 7 are argued together. Number 7 is not related to 5 and 6, and reads:

'The trial Court Judge erred in denying Appellant's Motion to recuse himself (trial Judge) from hearing this cause, and as such it constituted a denial of rights secured Appellant under the equal protection and due process of law clauses of the Fourteenth Amendment to the United States Constitution.'

If the refusal of the trial court to recuse himself can be reviewed by this court on this appeal under assignment of error No. 7, it is a proper assignment; but if the question cannot now be considered, the assignment of error is without merit.

Our cases repeatedly hold that the appropriate remedy to require a judge or other judicial officer to recuse himself, or to require him to act when he has recused himself, is mandamus. Hudson v. Sparks, 272 Ala. 203, 129 So.2d 664; Riley v. Wilkinson, 247 Ala. 231, 23 So.2d 582; Lindsey v. Lindsey, 229 Ala. 578, 158 So. 522; McConnell v. Goodwin, 189 Ala. 390, 66 So. 675, Ann.Cas.1917A, 839; Ex parte State Bar Association, 92 Ala. 113, 8 So. 768, 12 L.R.A. 134.

In the last cited case, this court, speaking through McClellan, J., decided that mandamus was the proper remedy, and said that the point 'appears to be too well settled by the authorities to justify, or even admit, of much discussion.'

The judge before whom a proceeding is brought must determine, in the first instance, the question of his own competency. This decision may present to him a delicate and difficult question, but in solving it he is without discretion, and his action, if erroneous, is subject to be controlled by mandamus seasonably applied for. Smith, State ex rel. v. Pitts, Judge, 139 Ala. 152, 36 So. 20; Ex parte Dew, 7 Ala.App. 437, 62 So. 261.

It was with these authorities in mind that we said in Hudson v. Sparks, 272 Ala. 203, 129 So.2d 664, that the appropriate remedy to require a judge to recuse himself on account of bias or prejudice is mandamus, but the party seeking the recusal has the right to make the motion for recusal in the main proceeding in order to get a ruling by the court on which to base the application for mandamus.

In Cook v. State, 269 Ala. 646, 115 So.2d 101, we said:

'If, as argued, Judge Jones was not in fact a judge at the time and place, that proposition could only be raised or sustained in a direct proceeding against Judge Jones in which he is a party. Here, the objection was made to Judge Jones himself. Judge Jones was called upon to decide whether or not he was a qualified judge. This was a question only a judge could answer. The rule is that to determine the competency of the judge to act in a given case, the party objecting must bring an action in which the judge himself is a party. The question cannot be determined in a proceeding before the judge being questioned, or on appeal. * * *'

Appellant evidently knew the law because it seasonably filed a mandamus proceeding in this court to require the trial judge to recuse himself, but then failed or refused to file a brief even after 'the Clerk of the Court notified counsel for petitioner that brief and argument should be filed in accordance with the rule.' (Supreme Court Rule 12, which requires the appellant to file a brief). We had no alternative than to dismiss the action. N. A. A. C. P. v. Jones, 268 Ala. 504, 109 So.2d 140.

Appellant had its day in court, it raised the question of recusal in the proper manner, its grounds then were the same as here argued, the proof was substantially the same, and the trial judge was properly made a party, yet appellant...

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27 cases
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