Noble v. Crane

39 App. D.C. 252, 1912 U.S. App. LEXIS 2219

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 4, 1912
• Docket: No. 2446
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered tbe opinion of thé Court:

Appellant, Harriet E. Noble, moves to vacate tbe order heretofore entered dismissing tbe appeal, for want of sufficient assignment of errors, and to reinstate tbe cause.

A demurrer to tbe appellant’s bill of review was sustained in tbe court below, and declining to amend, tbe bill was dismissed. Her appeal having been perfected, tbe error assigned is: “Tbe court erred in sustaining tbe demurrer and dismissing tbe bill.”

Upon appellees’ motion to dismiss—no brief in opposition having been presented—the assignment was held insufficient, .and the appeal dismissed. We were of the opinion that the assignment could have been made more specific by resort to the matters of law stated as intended to be argued upon the hearing of the demurrer. Upon reconsideration we are of the opinion that the assignment should be held to be sufficient. The bill presents but one issue, substantially, and the ground upon which the demurrer was sustained does not appear. Under these circumstances it would be difficult to assign specific error in the order, without expanding the assignment of errors into an argument. Under a rule substantially like that of this court relating to assignments of errors, a similar general assignment has been held to be sufficient. Atchison, T. & S. F. R. Co. v. Meyers, 22 C. C. A. 268, 46 U. S. App. 226, 76 Fed. 443, 444; Leslie v. Standard Sewing Mach. Co. 39 C. C. A. 314, 98 Fed. 827, 828. See also Holst v. Burrus, 79 Ga. 111-114, 4 S. E. 108; Sneer v. Stutz, 93 Iowa, 62-66, 61 N. W. 397; Williams v. Williams, 115 Iowa, 520—524, 88 N. W. 1057; Emerson v. Eldorado Ditch Co. 18 Mont. 247-257, 44 Pac. 969.

The order dismissing the appeal is vacated, and the motion to ■dismiss denied. The motion to affirm is postponed to the hearing.