Pinal County v. Heiner

• Decision Date: 17 October 1922
• Docket Number: Civil 2028
• Citation: 24 Ariz. 346,209 P. 714
• Parties: COUNTY OF PINAL, Appellant, v. G. M. HEINER, Trading as the "SUPERIOR SUN," Appellee
• Court: Arizona Supreme Court

209 P. 714

24 Ariz. 346

COUNTY OF PINAL, Appellant, v. G. M. HEINER, Trading as the "SUPERIOR SUN," Appellee

Civil No. 2028

Supreme Court of Arizona

October 17, 1922

APPEAL from a judgment of the Superior Court of the County of Pinal. O. J. Baughn, Judge. Affirmed.

Mr. W J. Galbraith, Attorney General, Mr. George R. Hill, Assistant Attorney General, and Mr. E. P. Patterson, County Attorney for Appellant.

Mr George P. Stovall and Mr. E. L. Green, for Appellee.

OPINION

McALISTER, J.

This is an action by G. M. Heiner as publisher of the "Superior Sun," a weekly newspaper published at Superior, Arizona, against Pinal county, this state, for the recovery of $1,011.60, the loss of which he alleges he suffered as a result of the latter's failure to comply with a contract for certain county printing, and from a judgment for him defendant appeals.

On February 27, 1922, appellant filed and served upon appellee its brief, assigning the following errors:

"I. That the evidence is insufficient to support the judgment.

"II. That the judgment is contrary to law.

"III. That the judgment is contrary to both the law and the evidence."

On March 2d, afterwards, appellee served on appellant a written notice of his objections to these assignments reading thus:

"That the assignments do not distinctly specify each ground of error, or the particular ruling complained of. That the assignments are general, and do not point out specifically in what the error consists, or wherein it occurred. That the assignments do not state wherein the judgment is contrary to law, and do not state wherein the judgment is contrary to the evidence. That the assignments and each of them are vague, uncertain, indefinite, insufficient, general and each ground of error is not separately and distinctly stated."

The assignments were not amended, though paragraph 1262, Civil Code of 1913, as well as subdivision 7 of rule VII of the rules of this court, provides that within ten days after the service of notice of objections to the assignments of error appellant may amend them, and --

"in case of failure to amend such assignments of error, or in case the court deems the assignments insufficient to present the matters involved, it shall require the appellant to file and serve a supplemental brief amending such assignments of error within such time and upon such terms as the court may prescribe."

Appellee objects to the consideration by this court of any of the matters attempted to be raised by appellant's brief because of the alleged insufficiency of the assignments to present them, and prays for an affirmance of the judgment upon this ground. The assignments themselves, considered in the light of the objections to them, determine their sufficiency, for the language quoted from paragraph 1262 does not relieve this court from the duty of passing on them, whether sufficient or insufficient, nor empower it to sustain them if insufficient, when their sufficiency has been properly questioned, merely because a supplemental brief has not been filed nor ordered filed. It was not intended by this provision that an appellant could file insufficient assignments and, if objected to, wait until the court orders him, either because of his failure to amend or because it deems them insufficient to present the matters involved, to file a supplemental brief amending them. When properly questioned he should re-examine his assignments if not already sure of his ground, and ascertain whether the objections are well founded, and, if they are, amend, whether ordered to do so by this court or not, but, if unfounded, naturally amendment becomes unnecessary.

Hence failure to amend indicates that he is satisfied with their sufficiency, and not that he is waiting until ordered by this court to file his supplemental brief containing amended assignments, for it has been the practice of this court, since the enactment of paragraph 1262, to determine the sufficiency of assignments of error, when properly objected to, upon final disposition of the case, rather than to order the filing of a supplemental brief amending them. It is natural, therefore, to assume that amendments would be made without waiting for an order of this court, if it were felt by appellant that there was merit in the objections, because it must be clear to the bar that this court cannot depart from its practice in this particular and take upon itself the burden of investigating, upon its own initiative, the record of a case for the mere purpose of advising whether the assignments are sufficient. To do so would frequently call for a knowledge of the case as thorough and complete as that required to dispose of it finally, and the court has not the time to gain this previous to taking up the cause for final action. Besides the matter is not called to this court's attention prior to the submission of the cause, and, even if it were, we think the practice which has thus far prevailed should continue.

Whether the judgment should be affirmed or reversed, therefore, depends entirely upon the sufficiency of the assignments considered in connection with the objections. Under rule XII, subdivision 1, of the rules of this court, it is provided that "all assignments of error must distinctly specify each ground of error relied upon and the particular ruling complained of." These assignments do not comply with this requirement. To say that the evidence is insufficient to support the judgment, that the judgment is contrary to the law, or that the judgment is contrary to the law and the evidence, is to say that the judgment is not correct without pointing out in what respect this is true. The rulings complained of are no more definite, certain, or specific than the broad statement that the judgment is wrong would be, for no one of the assignments discloses what particular action of the court appellant had in mind as its basis, and --

"The object of these provisions" (rules relating to assignments of error), "as we have had occasion to say before, is the designation of specified errors, in order that the court and opposite counsel may be clearly informed of whatever particular ruling or action below is relied upon for the reversal or modification of the judgment. A proper observance of the statute and rules relating to assignments of error is so essential to the preservation and protection of the rights of litigants before this court that their plain requirements are again brought to the notice of the bar." Charouleau v. Shields & Price, 9 Ariz. 73, 76 P. 821.

It has been held by this court on a number of occasions that assignments of this character are insufficient to raise or present for review any ruling of the trial court. Smith v. Arizona Engineering Co., 21 Ariz. 624, 193 P. 303; Brought v. Minor, 17 Ariz. 28, 148 P. 294; Landers v. Joerger, 15 Ariz. 480, 140 P. 209; Estate of Scarry, 15 Ariz. 246, 137 P. 868; Main v. Main, 7 Ariz. 149, 60 P. 888; Ward v. Sherman, 7 Ariz. 277, 64 P. 434; Wiser v. Lawler, 7 Ariz. 163, 62 P. 695; Sherman v. Goodwin, 11 Ariz. 141, 89 P. 517; Wootan v. Roten, 19 Ariz. 235, 168 P. 640.

Neither is the defect cured by the fact that the rulings complained of, or grounds relied on, appear in the argument under the various assignments, because these should be so nearly complete in themselves as not to require a resort to other sources of information to determine what is intended to be presented by them. Hence,...