Wilburn v. Reitman, Civil 4096

• Decision Date: 26 June 1939
• Docket Number: Civil 4096
• Citation: 91 P.2d 865,54 Ariz. 31
• Parties: B. C. WILBURN, Appellant, v. L. REITMAN and ELIZABETH REITMAN, Husband and Wife, Appellees
• Court: Arizona Supreme Court

91 P.2d 865

54 Ariz. 31

B. C. WILBURN, Appellant, v. L. REITMAN and ELIZABETH REITMAN, Husband and Wife, Appellees

Civil No. 4096

Supreme Court of Arizona

June 26, 1939

APPEAL from a judgment of the Superior Court of the County of Yuma. M. T. Phelps, Judge. Judgment affirmed.

Mr. J Fred Hoover, for Appellant.

Mr. R C. Bennett and Mr. Wm. H. Westover, for Appellees.

OPINION

ROSS, C.J.

The appellant's assignments of error are in the following words:

"1. The Court erred in rejecting evidence offered by the plaintiff.

"2. The Court erred in refusing to allow the plaintiff to put on his evidence.

"3. The Court erred in instructing a verdict against the plaintiff.

"4. The Court erred in over-ruling the motion for a new trial."

We have so often refused to accept assignments like these as sufficient to present any question for review that we feel we can make no exception in this case. Beebe v State, 49 Ariz. 190, 65 P.2d 658; DeMille v. State, 43 Ariz. 551, 33 P.2d 280; Hansen v. Hansen, 26 Ariz. 292, 224 P. 826; Wootan v. Roten, 19 Ariz. 235, 168 P. 640. We regret this not because we think there is merit in the appeal but because of the rather novel reasons suggested in the brief of counsel for appellant for his being here. The first sentence of his opening brief is as follows:

"This is an action for damages caused by defendants' failure to perform their part and then ejecting plaintiff from the premises...."

Aside from its poor construction, this sentence has an obscure meaning that no one can fathom without reading the whole record. Subdivision 2 of Rule VII of the Supreme Court provides:

"2. The appellant's opening brief shall contain, in the order herein indicated:

"(a) A concise statement of the ultimate facts of the case as appellant contends them to be proved by the evidence submitted upon the trial, and material to the determination of the issues presented in this court...."

We suppose counsel thought the above a compliance with the rule for in no other place in his brief does he attempt to make "a concise statement of the ultimate facts of the case."

Counsel for appellant explains his connection with the appeal as follows:

"... after the case was decided in favor of the defendants and the motion for a new trial was overruled these attorneys (attorneys for plaintiff in trial court) stepped out and the writer of this brief, your humble servant (J. Fred Hoover) believing that error has been made has undertaken this appeal, this is done with the consent of former counsel and with abundance of good feeling and admiration for them and my usual admiration and love for his Honor Judge Phelps, the trial Judge."

Whether it was error counsel wanted to have corrected, or a desire on his part to give vent to his feelings toward the court and opposing counsel that caused him to undertake the appeal is, to our minds, a question. It seems that if his purpose was to have errors corrected, he would have prepared proper assignments. He would also have seen to it that the transcript of the evidence was properly signed and approved by the trial judge. The transcript is in the files, but because of the omission to secure its proper approval by the trial judge, we may not consider it. Hamilton v. State, 17 Ariz. 483, 154 P. 1039; Piper v. Taylor, 17 Ariz. 351, 152 P. 863; Kinney v. Neis, 14 Ariz. 318, 127 P. 719; Shaffer v. Territory, 14 Ariz. 329, 127 P. 746. However, to illustrate the kind of argument counsel makes for a reversal, we quote from that part of his brief headed "Argument" as follows:

"Assignment of error No. 1. Line 25, page 19, Transcript of testimony the plaintiff asked. 'Q. Who drew up this contract, Mr. Wilburn?' Mr. Westover, defense counsel, objected 'as incompetent, irrelevant and immaterial.' The objection was sustained. This testimony is competent. 13 C.J. Sec. 516, Page 544."

The section of Corpus Juris cited states that when a contract is ambiguous it will be construed most strongly against the party preparing it. There is no contention or suggestion that the information sought by the question would explain any ambiguity in the contract, and if there was none the ruling was correct. Anyway, the so-called error was the peg upon which counsel for appellant hangs the following statement:

"The error might seem immaterial owing to the fact that the verdict was instructed, but it is very material because it reduced the morale of the plaintiff counsel. As a trial lawyer I know that nothing kills the spirit; the morale; the courage; the confidence; the state of mind of a lawyer like a ruling on evidence which makes him wrong when he is right; it takes from him the thought; 'I will win', and replaces it with the thought; 'I will lose', and as a man thinketh so he is and so he does; and another reason, this is one of the times in which Mr. Westover was able to, and did, dominate the court. Mr. Westover tried time and again throughout the trial to completely dominate the court, to control the court by dominant will power and by the power of suggestion."

It is just too bad if the court's ruling took all the pep ginger and fire out of the...