Williams Bros. Lumber Co. v. Kelly

• Decision Date: 03 September 1909
• Citation: 23 S.D. 582,122 N.W. 646
• Parties: WILLIAMS BROS. LUMBER COMPANY, Plaintiff and respondent, v. J. F. KELLY et al., Defendants and appellants.
• Court: South Dakota Supreme Court

23 S.D. 582, 122 N.W. 646 (1909)

WILLIAMS BROS. LUMBER COMPANY, Plaintiff and respondent v J. F. KELLY et al., Defendants and appellants South Dakota Supreme Court Appeal from Circuit Court, Marshall County, SD Hon. J. H. McCoy, Judge Affirmed Byron Abbott and Otto L. Kam Attorneys for appellants. Sears & Potter Attorneys for respondent. Opinion filed Sept. 3, 1909

CORSON, J.

This case comes before us on an appeal from the judgment and order denying a new trial. The respondent has filed in the court the following additional or amended abstract, in which it is alleged: (1) That the record shows that no assignments of error have been made or filed in this court by appellant. (2) That appellant moved for a new trial, and has not assigned any error upon the overruling of such motion. (3) That appellant has not on this appeal pointed out or specified any errors committed by the trial court.

An examination of the record discloses that the statement made in the additional or amended abstract is correct, and that there are no assignments of errors filed in this court or set out in the abstract. By rule 11 of this court it is provided:

“In civil actions and proceedings the appellant shall append to and print with his abstract an assignment of errors, which assignment need follow no stated form, but must, in a way as specific as the case will allow, point out the errors objected to, and only such as he expects to rely on and ask this court to examine. …”

This rule of the court is mandatory, and must be complied with, and, unless complied with, the judgment of the court below must be Affirmed. In 2 Enc. Pl. & Prat: 922, the law applicable to this question is thus stated:

“It is generally said that the assignment of errors in the appellate court is just as essential as the declaration or complaint in the lower court. It is jurisdictional, and cannot be dispensed with by agreement of the parties. Without it the court has no means of knowing what rulings are presented for its review, and in fact has nothing before it.”

And a number of authorities are cited in support of this position. It is further said: “The failure to file an assignment of errors must consequently entail an affirmance of the judgment or decree, or a dismissal of the appeal.” State v. Brown (Md.) 16 Atl. 722; McKinnon v. Atkins, 60 Mich. 418, 27 N.W. 564; Berg v. Bishop, 39 Mo. 356; Stanton V. Slabaugh (NIo.) 11 SW 577; McLeod v. Dickenson, 11 Mont. 438, 28 Pac. 551; McNeil v. Kyle. 86 Ala. 338, 5 South. 461; Globe Inv. Co. v. Boyum, 3 N. D....