Buell Et Ux. v. Mathes Et Ux.

205 P.2d 551, 197 P.2d 687, 186 Or. 160

• Court: Oregon Supreme Court
• Decided: March 15, 1949
• Status: Published

Opinions

ROSSMAN, C. J.

This cause is before us upon a motion of the respondents for

“an order striking from the record appellants’ brief and affirming the decree of the Circuit Court for Jackson County, heretofore granted herein, on the ground and for the reason that appellants’ said brief does not comply with Rule 2 of the Rules of the Supreme Court, 9 O. C. L. A., page 317, in that said brief does not present any Assignments of Error for this court to consider. ’ ’

Appellants’ brief does not employ the term “assignment of error.” It sets forth fifteen “propositions of law.” Only one of them mentions a ruling made by the trial judge. The proceeding which resulted in the decree challenged by the appellants was equitable. The prayer of the complaint sought an injunction.

Rule 2 of this court says:

“No alleged error of the circuit court will be considered by this court unless regularly presented in the assignments of error contained in the appellant’s opening brief, except that * * * .”

Rule 13 provides:

“The printed brief, aside from the cover, in arrangement and contents shall be as follows:

it & # *

“3. Assignments of Error -or Propositions of Law Involved. Each assignment of error or proposition of law must be separately stated under an appropriate heading. Each such, assignment or proposition should be clearly • and succinctly stated. * * * '

“The following arrangement and wording, as far as possible, together with reference to Bill of exceptions, are required:

“The court erred in failing to * * * .”

Going on, Rule 13 sets forth illustrations showing the manner in which the appellant should single out the error which he claims the circuit court committed. .

One of the propositions of law submitted by appellants’ brief follows:

“Where the rightful use and the wrongful use are undistinguishably intermingled, the wrongful use will be permanently enjoined and any use whatever, including the rightful use, will be temporarily enjoined until such time as the defendant shows the rightful user can be separated from the wrongful user. In such a case there can be no balancing of the equities, and where the plaintiff’s legal right is clear, equity has no discretion but to enforce it. ’ ’

It will be observed that the proposition does not indicate whether or not it was submitted to the trial judge. If it was submitted, the proposition fails to indicate what position the court took in regard to it; in short, it fails to claim or assign error.

The terms “proposition” and “assignment of error” are not synonymous. According to 4 C. J. S., Appeal and Error, p. 1716, § 1217:

“An assignment of error is distinguishable from a proposition in that the former is a formal complaint of some, action of the trial court, while the latter merely sets forth the reasons why such action is erroneous.”

The function of an assignment of error, as the term itself indicates, is to assign or claim error. An assignment of error is an indictment of something which occurred in the trial court and which the appellant claims renders the challenged decree or judgment reversible. Every assignment of error must designate a purported irregularity or a purportedly erroneous ruling and attribute error to it. If all of the assignments of error were written upon a single sheet of paper they would be, in effect, a complaint or a declara tion in this court made by the appellant. The respondent, by filing his answering brief, thus presents the issues for our attention.

This court from the earliest of times has enforced rules which required assignments of error to be specific. For instance, in State of Oregon v. McKinnon, 8 Or. 485, which was a contempt action, the court refused to consider an assignment of error which read: “The decision and judgment are against law.” The opinion, referring to that purported assignment of error, said: << * # # it ¿oes not specify any particular ground of error upon which appellants intend to rely on this appeal.”

N. P. Terminal Co. v. Lowenberg, 11 Or. 286, 3 P. 683, came before the court upon a motion to dismiss the appeal. The third ground of the motion was: “There is no assignment of errors in the notice of appeal.” The following is taken from the opinion:

“The only assignments of error in the notice of appeal are that the court below erred:

“1. In admitting certain testimony as is fully stated in the bill of exceptions herein filed.

“2. In excluding certain testimony as is fully-stated in said bill of exceptions.

“The particular errors relied upon must be specified. This has so often been ruled by this court that no further examination of the principles seems necessary. (State of Oregon v. McKinnon, 8 Or. 485).

“It is clearly not sufficient to assign error generally in admitting or excluding testimony, as shown by the bill of exceptions * * * .

“But upon the second and third grounds, the motion to dismiss must be sustained. ■

“The appeal is dismissed.”

Herbert v. Dufur, 23 Or. 462, 32 P. 302, traces the development of the rule which requires an appellant to set forth with clarity the purported errors upon which he depends. The decision reviews the rule both in its statutory and nonstatutory form. We take the following from the decision:

“ * * * In Swift v. Mulkey, supra, Strahan, J., said: The proper rule of practice is, that the appellant must put his finger upon the error complained of,’ otherwise, he said, ‘counsel need never do more than to say in his assignments of error that the court erred in its rulings on particular subjects, without in any measure discriminating or pointing out the specific errors, and then ask this court to go on a voyage of discovery through record in search of a particular error upon which counsel may be supposed to have relied.’ And he further observed, that the court could not ‘sanction such a practice; it is at variance with the requirements of our Code and with adjudged cases elsewhere.’ ”

The decision held:

“ * * * the assignments are too indefinite and general to notify the respondent, or apprise the court, of the error upon which the appellant intends to rely upon the appeal. ”

In the instances to which we adverted the requirement for assignments of error was legislative and was contained in the section of our laws (Hill’s Code, § 537) which made provision for the notice of appeal. That section said:

“The appellant shall cause a notice to be served on the adverse party, * * * and in case the judgment bé one rendered in an action at law, shall specify, the grounds of error, with reasonable certainty, upon .which • the appellant intends to rely upon the appeal; but in case the appeal be from a decree, it shall not he necessary to specify any such grounds of error.”

Laws of 1899, § 537, which made provision for an oral notice of appeal as well as the existing writing notice, repealed the paragraph just quoted.

Following the enactment of Laws of 1899, § 537, this court revised its rules upon the subject of assignments of error (see 35 Or. 587). The revised rules, which went into effect July 2,1900, were equally applicable to suits in equity and actions at law. Eule 9 continued in effect a rule adopted in 1894 (24 Or. 591) which required the appellant to set forth in the abstract of record his assignments of error. The Eules of 1894, like those which went into effect in 1900, were applicable to appeals affecting decrees as well as to those which challenged judgments. Eule 9, aforementioned, in setting forth the requirements for assignments of error, said:

“Assign and set out briefly and concisely the errors relied upon for a reversal or modification of the order, judgment, or decree appealed from. ’ ’

The rule was annotated; one of the annotations said:

“Where the appeal is taken from a decree entered on the pleadings, a formal assignment of errors is not imperatively necessary, though it is better practice to have it. (Neppach v. Jones, 28 Or. 286, 39 Pac. 999).”

Rule 10 said:

“On the hearing in this court, no questions will be examined or considered, except those going to the jurisdiction of the court, or when the pleading does not state facts sufficient to constitute a cause of action, or defense, or those arising upon the assignments of error, as contained in the printed abstract.”

Those requirements were enforced. Two examples are Carter v. Simpson Estate Co., 103 Or. 383, 193 P. 913, 203 P. 580, and Robinson v. Phegley, 93 Or. 299, 177 P. 942, 178 P. 799, 182 P. 373. In the former, the decision pointed out that the penalty for the violation of the rule consisted of refusal by this court to consider ‘ ‘ errors not assigned in the abstract, except those going to the jurisdiction of the court or the sufficiency of the action.” In the Eobinson case, the court found that the appellant’s failure to have included in his abstract of record his assignments of error was excusable and for that reason denied a motion to dismiss the appeal. The appellant, however, was directed to file an amended abstract of record containing his assignments of error. State v. Director, 113 Or. 74, 227 P. 298, 231 P. 191, was a criminal action. The decision said:

“This court has applied the first sentence in Eule 12 in innumerable civil cases, and has consistently refused to notice errors not assigned. We do not intend here to relax that rule, where it is applicable. ’ ’

In 1928 this court again revised its rules and in so doing provided that the assignments of error should be contained in the appellant’s opening brief. See 123 Or. 676, at 681. The revision of 1928, in referring to the purported error which constitutes the basis of an assignment of error, said: “It should be clearly and succinctly pointed out.” The statement of the rule was followed with illustrations which were intended to enable counsel to understand the requirement that each assignment of error should designate a specific error which the appellant claims was committed.

Since the revision of 1928 this court has redrafted its rules several times, but in all instances has retained and strengthened the requirement that an appellant must put his finger upon the purported errors made by the trial judge.

If an appellant who attacks a decree or a judgment believes that the trial judge committed error in reaching the conclusion which is manifested by the decree or judgment, he ought to be able to specify the error. If he has no error in mind, he ought not take an appeal. It is true that it may be more difficult to specify error with precision in equity suits than in law actions. The difficulty may result from the absence of instructions to a jury and the possible omission of the chancellor to have ruled upon the admissibility of the evidence. But, if the decree from which an appellant seeks to be relieved is in truth erroneous, some irregularity occurred in the circuit court. If an irregularity, in fact, occurred, it may have taken place in (1) framing the issues; (2) a matter pertaining to a deposition; (3) a misapplication of the rules of evidence; (4) an erroneous application of the rules of practice; (5) a mistaken determination of the facts; or (6) an erroneous conception of the substantive law. Counsel seem to experience no difficulty in preparing assignments of error in equity cases. Some briefs which we reviewed before writing these lines indicate that it is as possible to write good assignments of error in equity suits as in law actions.

Proposition of Law 6, set forth in the appellants’ brief, shows that in this suit it was possible to frame an assignment of error which designates a ruling of the trial judge and brands it as error. That proposition of law follows:

“The finding by trial court that plaintiffs own no part of the fee in the disputed lane is contrary to the undisputed evidence.”

That proposition is the only one which is couched in the form of an assignment of error and which indicates a ruling by the trial judge.

When the assignments of error are nebulous in character, the result is the same as when a complaint filed in the circuit court lacks clarity. Neither opposing counsel nor the court can be certain of the intentions which lurk behind the ambiguities. If the writing of a brief is not preceded by the framing of assignments of error, the brief will suffer. Even under such circumstances, the brief may be a good treatise, but, in all likelihood, it will fail to come to grips with the error upon which the appellant wishes a ruling. The first step in the writing of a brief which will, in fact, attack the alleged error is the preparation of good assignments of error. A brief deficient in assignments of error is unfair to the respondent. It denies him a target and requires him to scatter his fire. Defective assignments of error may fail to acquaint this court with the errors the appellant has in mind. Appellants’ briefs which do not comply with the rules in regard to assignments of error are frequently followed in their wake with petitions for rehearing. Time spent in compiling the assignments of error is not wasted. It is the precursor of a good brief. Assignments of error which sequester clearly, one by one, rulings which the appellant challenges make for brevity, cogency and clear thinking.

It is our belief that the above-quoted Proposition of Law 6 is the only one which can be deemed an assignment of error. We have no disposition to be unduly exacting, and, although Proposition of Law 6 is not termed an assignment of error, we shall deem it one. We set forth in a preceding paragraph part of Rule 2 of this court; the remaining part reads:

Hugh B. Collms, of Medford, argued the cause and filed a brief for appellants. G. W. Kellington, of Medford, argued the cause for respondents. With him on the brief was George M. Roberts, of Medford.

tt * * * except that this court reserves the right to take notice of an error of law apparent on the face of the record. The objection that the circuit court had no jurisdiction of the cause, that the complaint does not state facts sufficient to constitute a eause of suit or action, or that the supreme court has no jurisdiction of the appeal, may be taken at any time.”

We cannot strike from the record the appellants’ brief. It contains a useful statement concerning the controversy, an apparently good review of the pleadings and the aforementioned Proposition of Law 6.

The respondents’ motion is denied.