Wolfley v. Gila River Irrigation Co.

• Decision Date: 18 April 1890
• Docket Number: Civil 278
• Citation: 24 P. 257,3 Ariz. 176
• Parties: LEWIS WOLFLEY, Plaintiff and Appellee, v. GILA RIVER IRRIGATION COMPANY, Defendant and Appellant
• Court: Arizona Supreme Court

24 P. 257

3 Ariz. 176

LEWIS WOLFLEY, Plaintiff and Appellee, v. GILA RIVER IRRIGATION COMPANY, Defendant and Appellant

Civil No. 278

Supreme Court of Arizona

April 18, 1890

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W Porter, Judge.

Appeal dismissed.

H. N Alexander, and Frank Cox, for Appellant.

Baker &amp Campbell, for Appellee.

Section 940, Revised Statutes of Arizona, provides: "The appellant or plaintiff in error shall in all cases file with the clerk of the court below an assignment of errors distinctly specifying the grounds on which he relies, before he takes the transcript of the record from the clerk's office, and a copy of such assignment of errors shall be attached to and form a part of the record, and all errors not so distinctly specified shall be considered as waived by the supreme court." No assignment of errors appears in the transcript. Any errors committed are therefore waived by the appellant. The appellate court will not take upon itself the duty of examining the transcript for the purpose of ascertaining whether error was committed in the court below. Brown v. Tullis, 7 Cal. 398; Gray v. Salt River Valley Canal Co., 2 Ariz. 225, 12 P. 607. The judgment should be affirmed.

In the appellant's transcript there appears what purports to be a bill of exceptions. This cause was tried on the fifth day of June, 1889. Defendant's bill of exceptions was prepared, settled, and filed upon the sixth day of September 1889, ninety days after the trial of the cause.

Section 828 of the Revised Statutes of Arizona provides that it shall be the duty of the party taking any bill of exceptions to reduce the same to writing and present the same to the judge for allowance during the term and within ten days after the conclusion of the trial. This the appellant has failed to do, and it has thereby waived any error occurring during the trial that it might have taken advantage of by bill of exceptions presented within the statutory time.

Sloan, J. Wright, C. J., and Kibbey, J., concurring.

OPINION

The facts are stated in the opinion.

SLOAN, J.

An inspection of the record in this case shows that no assignment of errors has been filed. The case should be dismissed for the failure to comply with the plain provision of paragraph 940 of the Revised Statutes of 1887, which requires appellant to file with the clerk of the court below his assignment of errors. The effect of a failure to file any assignment of errors is to waive all errors not apparent upon the record, and which do not go to the foundation of the action. Roy v. Bremond, 22 Tex. 626; Burns v. Wiley, 35 Tex. 20; ...