Alabama National Life Ins. Co. v. Bozeman

168 So. 2d 488, 42 Ala. App. 486, 1964 Ala. App. LEXIS 240

• Court: Alabama Court of Appeals
• Decided: October 27, 1964
• Docket: 6 Div. 43
• Status: Published

Opinion

PRICE, Presiding Judge.

Before submission, counsel for appellee filed a motion to dismiss this appeal and to affirm the judgment on the grounds:

(1) There is no certificate that a copy of the assignments of error has been served upon appellee;

(2) No assignment of error was served upon appellee or his counsel.

In Board of Education of Colbert County v. Mitchell, 270 Ala. 594, 121 So.2d 103, the court said:

“An assignment of error is an instrument of appellate pleading. It should be available to one’s opponent, and where, as here, a copy of the assignments of error was not served on appellee and the brief of appellant does not contain an assignment either literally or by a fair paraphrase, the opponent is put in the position of not knowing whether an assignment of error has been made and, if so, of what it consists.”

The record contains assignments of error, but there is no certificate that a copy of the assignments of error had been served on appellee as required by amended Supreme Court Rule 1.

The assignment of error in the brief is not an exact copy or a fair paraphrase of the assignments set out in the transcript.

We also note that the matters argued in the brief do not disclose newly discovered evidence as a matter of law, and are not such as could be classified as newly discovered evidence.

The motion is well taken and must be granted. Board of Education of Colbert Co. v. Mitchell, supra; Alabama Terminix Company, Inc. v. Lewey, 273 Ala. 272, 138 So.2d 718.

The judgment appealed from is affirmed.

Affirmed.