Oswego Township v. Travelers' Ins.

70 F. 225, 17 C.C.A. 77, 1895 U.S. App. LEXIS 2495

• Court: Court of Appeals for the Eighth Circuit
• Decided: September 16, 1895
• Docket: No. 623
• Status: Published

Opinion

CALDWELL, Circuit Judge.

Bule 11 of this court (11 C. C. A. cii., 47 Fed. vi.) provides that:

“The plaintiff in error or appellant símil file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record and be printed with it. When this is not done, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded; but the court, at ixs option, may notice a plain error not assigned.”

The following is a copy of the assignments of error filed in the court below in this case:

“Oomes now the defendant, and assigns the following errors against the plaintiff in this action: (1) Errors of law occurring at the trial, and duly excepted to by the defendant. (2) The court erred in admitting" testimony by the plaintiff, which was objected to and duly excepted to by the defendant. (3) The court erred in refusing to permit evidence to be introduced duly' offered by the defendant. (4) The verdict is contrary to law. (5) The verdict is not supported by the evidence. (6) The court erred in instructing the jury to find a verdict for the plaintiff. (7) The court erred in rendering judgment for the plaintiff in this case.”

These assignments bring nothing to the attention of this court. The fifth assignment — that the verdict is not supported by the evidence — cannot be noticed, because the defendant did not ask at the close of the whole evidence for a peremptory instruction for a verdict in its behalf. Village of Alexandria v. Stabler, 4 U. S. App. 324, 1 C. C. A. 616, 50 Fed. 689; Insurance Co. v. Unsell, 144 U. S. 439, 12 Sup. Ct. 671; Insurance Co. v. Frederick, 7 C. C. A. 122, 58 Fed. 144; Mining Co. v. Ingraham (present term) 70 Fed. 219. Moreover, it does not affirmatively appear that the evidence in the record before us was all the evidence introduced on the trial. From these assignments it is impossible to tell what the testimony was to the introduction of which the defendant exóepted, or the nature of the evidence offered by the defendant, and which the court excluded. In a word, the assignment of errors does not convey the slightest information as to the nature of tlie errors complained of. For anv legal purpose, they are worth no more than blank paper. National Bank of Commerce v. First Nat. Bank, 10 C. C. A. 87, 61 Fed. 811; Supreme Council Catholic Knights of America v. Fidelity & Casualty Co. of New York, 11 C. C. A. 96, 63 Fed. 49; Grape Creek Coal Co. v. Farmers’ Loan & Trust Co., 12 C. C. A. 350, 63 Fed. 891. We cannot overlook such a total failure to comply with our rules. The judgment of the circuit court is affirmed.