Newsom v. Newsom, 39852

• Decision Date: 13 February 1956
• Docket Number: No. 39852,39852
• Citation: 85 So.2d 221,226 Miss. 696
• Parties: Mamie NEWSOM v. I. N. NEWSOM et al.
• Court: Mississippi Supreme Court

Page 221

85 So.2d 221

226 Miss. 696

Mamie NEWSOM v. I. N. NEWSOM et al.

No. 39852.

Supreme Court of Mississippi.

Feb. 13, 1956.

Barnett, Jones & Montgomery, Jackson, Robert H. Dale, Columbia, for appellant.

Rawls & Hathorn, C. E. Conner, Columbia, H. H. Parker, Poplarville, G. B. Keaton, Picayune, for appellees.

ARRINGTON, Justice.

Appellant's counsel has filed a 49 page suggestion of error in which he contends primarily that the Court's original decision affirming the decree of the chancery court was error, because we did not hold that appellees representing three-fifths of the interests in the property in question had admitted in their cross-bill that the 1922 deed to appellant was delivered to her. Complaint is made that our opinion did not dscuss that.

Appellant raised this point for the first time in her rebuttal brief. The opinion did not refer to the same because the point was manifestly and wholly without merit.

The record indicates rather clearly that this point was never presented to the trial court. It was not raised in the assignment of error, nor in appellant's original 66 page brief. It was raised for the first time, apparently as an afterthought, in appellant's rebuttal brief. Hence appellees had no opportunity of replying to the same. It is well established that it is improper to raise now points or assignments for the first time in the rebuttal brief of appellant, and that where they are so raised, the Court is under no duty to consider the same. Estes v. Bank of Walnut Grove, 1935, 172 Miss. 499, 513, 159 So. 104. In 3 Am.Jur., Appeal and Error, Section 782, this universal rule is concisely stated: 'The function of the reply brief is rebuttal, and it is therefore improper for it to raise new points or assignments. Ordinarily, if it is desired to exceed the usual scope, leave of court should first be obtained. As a general rule, all points on which counsel rely for a reversal should be made in the opening brief, since the courts are not disposed to look with favor on a point which is made for the first time in the reply brief unless a good reason appears for the failure to make it in the opening brief.'

In addition, Supreme Court Rule 6(2) provides: 'No error not distinctly assigned shall be argued by counsel, except upon request of the Court, but the Court may, at its option, notice a plain error not assigned or distinctly specified.'

These foregoing rules of pleading and practice in this Court are well established, have a sound and practical basis, and are pertinent here.

Moreover, appellant's contention that there was an admission by some of appellees in their cross-bill is on the facts incorrect. There were numerous pleadings. In appellant's second amended bill of complaint it was charged that she was the owner of the property under a 1922 deed from her mother. Appellee's answer denied that allegation, and denied that the 1922 deed to appellant was valid. There were several answers by the several defendants. In the original cross-bill of I. N. Newsom, adopted by some of the other defendants, I. N. Newsom charged that he, by agreement with appellant and the other heirs, had built a new house upon the land after the original one had burned, and asked the Court to place a lien on the property in favor of him, if complainant should prevail. By an amendment to the cross-bill, I. N. Newsom further charged that the 1922 deed was without consideration and therefore void. The cross-bill then said: 'The defendant and cross-complainant would show that the instrument of record in Book 117 at page 538, purporting to be a deed from Mrs. M. J. Newsom to Mamie Newsom has been altered and changed subsequent to its execution and delivery and before being filed for record, and that same is now a different instrument from the one that was executed and delivered on April 29, 1922, and therefore said instrument is now null, void...