Laws

Branch v Texas Lumber Post Date: Sun, 27 Jul 2008 10:00:02 +0000
Arrington v Roach, 42 Ala 155; Wal- ler v Sultzbacher, 38 Ala 318; Fea- gan v Kendall, 43 Ala 628 Mississipp I In Shaw v Brown, 42 Mis S 313, the court considered an as- signment of error, though not argued in the brief, where the record plainly showed the ground of the error as- signe d Sufficiency of the Complaint. A ques- tion as to the sufficiency of the com- plaint, not discussed in the appellant's brief, cannot be considered, although by statute it is provided that this question may be raised at any ti Me Francioli v Brue, 4 Wash 124 One Brief for Two Case S Where two cases were argued together, but only one brief was filed, on the decision of one case, in the absence of an agree- mr 3t of counsel, a point not made in the brief, although urged in oral argu- ment, could not be determined, the court being unable to say that it was urged as applicable to the particular cas e Iowa Homestead Co v Des Moines Nav, etc, Co, 63 Iowa 285 Important Question not Discusse d In Texas, where there was no assignment of errors by the plaintiff in error, and important questions to be determined were not noticed by the parties in their briefs, the case for investigation stand- ing in an embarrassing condition, the writ of error was dismissed, although it was not usual to dismiss for want of an assignment of errors, except upon motion of defendant in erroRLegon v Withee, 25 Tex 350 Rehearin g Points waived will not be considered on rehearin g Schafer v Schafer, 93 Ind 586 Waiver by Unqualified Submissio N Where there was a joinder in error and an unqualified submission of the cause, the appellee waived the mo- tions for a certiorari and to dismiss the appeal made in the brief of his Counse L Alexander v Nelson, 42 Ala 462 In Criminal, as well as civil, cases, errors assigned but not discussed, and objections not made in the brief, will not be considere d Lindsey v State, 82 Ind 7; Bybee v State, 94 Ind 443; State v Doe (Wash, 1893), 34 Pac Rep 154 1 McGill v Monette, i Ala Se L Ca S 285; Doe v McDougal, 48 Ala 383; Rowland v Plummer, 50 Ala 182; Jacksonville, etc, RCo v Griffin, 33 Fla 602; Seaton v Ruff, 39 111 App 235; Chicago City RCo v Van Vlec K 40 111 App 367; Mattoon v Bowles, 48 111 App 528; Roberts v Wilkinson, 34 Mich 129; Smith v Bean, 46 Min N 138; Moody v Tschabold, 52 Min N 51; Johnson v Johnson (Min N, 1894), 58 N W Rep 824; Hardin v Abbey, 57 Tex 582; Hughes v Galveston, etc, RCo, 67 Tex 595; Van Gunden v Virginia Coal, etc, Co, 8 U S App 229, 52 Fed Rep 838 See Olmstead v Thompson, 91 Ala 127; Flanders v Crolius, i Duer ( N Y) 206; Cum- mings v Morris, 3 Bosw ( N Y) 560; Mierson v New York, 6 Daly ( N Y) 74- In Indiana, by rule of court, such errors are considered waive d Payne v McClain, 7 Ind 139; Indianapolis, made in the brief but not assigned for error will likewise be considered waive d 1 Names of the Partie S The brief should be correctly entitled with the name of the court in which it is to be used and the names of all the parties to the cas e 2 Signature of Counse L And the brief should be signed by the counse L 3 etc, RCo v Klein, u Ind 38; Mor- ton v State, 18 Ind 198; Tracewell v Peacock, 55 Ind 572; Burke v Hill, 55 Ind 419; Watson v Piel, 58 Ind 566; Richie v State, 58 Ind 355: Howe Machine Co v Rogers, 68 Ind 266; Leonard v Barnett, 70 Ind 367; Will- iams v Potter, 72 Ind 354; Ohio, etc, RCo v Nickless, 73 Ind 382; Greencastle v Martin, 74 Ind 449; Stanton v State, 74 Ind 503; Byram v Galbraith, 75 Ind 134; English v State, 81 Ind 455; Peoria, etc, RCo v Flicker, 95 Ind 180; Cooper v Hayes, 96 Ind 391; Western Union Te L Co v Kilpatrick, 97 Ind 42; Maddox v Maddox, 97 Ind 537; Dan- iels v McGinnis, 97 Ind 549; Fair- banks v Meyers, 98 Ind 92; Kennell v Smith, 100 Ind 494; Cowger v Land, 112 Ind 263; Engleman v Ar- nold, 118 Ind 81; Sparklin v St James Church, 119 Ind 535; Staser W Hogan, 120 Ind 207; Louisville, etc, Ferry Co v Nolan, 135 Ind 60; Mahoney v U Gano, 2 Ind App 107; Hollings- worth v State, in Ind 289, citing Northwestern Mut L In S Co v Hazelett, 105 Ind 217; Pratt v Allen, 95 Ind 404 But see Trayser v In- diana Asbury University, 39 Ind 556 Nebraska Gregory v Edgerly, 17 Neb 373; Brown v Dunn, 38 Neb 52; Gill v Lydick, 40 Neb 508; Glaze v Parcel, 40 Neb 732; Reed v Wood ( Neb, 1894), 60 N W Rep 909; Hed- rick v Strauss ( Neb, 1894), 60 N W Rep 928 See Townsend v J I Case Threshing Mac H Co, 31 Neb 836 Where it was expressly stated in a brief that the cause was presented for consideration "on the specifications of error hereinafter set forth and dis- cussed," and one of the specifications assigned was not afterwards men- tioned, this was held a clear abandon- ment of it. Branch v Texas Lumber Mfg Co, 2 U S App 623, 53 Fed Rep 849 Where the appellee's brief does not discuss various assignments, and they are not discussed in oral argument, they will be held waived, although it is expressly stated in the brief that they are not waive d Ashman v Flint, etc, RC O 90 Mich 567 Merely Reciting Assignment.

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Mason v Partrick, 100 Mich Post Date: Sun, 27 Jul 2008 9:40:56 +0000
To en- title the errors assigned to notice, it will not be sufficient to merely recite the assignment as it stands on the rec- ord, without any argument or author- ity in support of it. Bennett v State, 22 Ind 147; Powers v State, 87 Ind 144; Arbuckle v Biederman, 94 Ind 168; Robbins v Magee, 96 Ind 174 Excus e And it will not be an ex- cuse for the failure to discuss some assignments, that the brief is " already too lon g" Pittsburgh, etc, RCo v Williams, 74 Ind 462 1 St Louis Bridge, etc, RCo v People, 127 111 627; St Louis Bridge Co v People, 128 111 422; Ruffing v Tilton, 12 Ind 259; Bryant v Wads- worth, 16 Ind 412; Woodall v Greater, 51 Ind 539; Van Eppes v Smith, 21 Ala 317 Even if they were excepted to in the court belo W Rowland v Plummer, 50 Ala 182 In Texas such points will not be con- sidered unless so fundamental that the court would act upon them with- out an assignment of erroRShanks v Carroll, 50 Tex 17 Assignment Filed too Lat e A brief based upon an assignment of errors which has been stricken out because filed too late cannot be considere d American Legion of Honor v Rowell, 78 Tex 677 2 But the failure of the appellant to name all the appellees in his brief will not be good cause for dismissing the appeal where the notice of appeal is properly entitled and served upon all the parties, especially where the appellees ask for an extension of time in which to file their reply brief War- burton v Ralph (Wash, 1894), 38 Pac Rep 140 8 Though it seems that the want of such signature will generally not pre- vent consideration of the brief Smith v Fordyce (Tex, 1891), 18 S W Rep 665 2 Sufficiency of Discussio N What constitutes a sufficient brief varies somewhat in the several states, 1 but in general it is not suffi- 1 Indiana On appeal to the Su- preme Court of Indiana a brief, in addition to one for a supersedeas merely, must be file d McKeen v Boord, 60 Ind 280; Bray v Franklin L In S Co, 68 Ind 6; Ogle v Man- love, 133 Ind 55 A paper purporting to be a brief, but containing only a short abstract of the proceedings below, and a gen- eralstatementof theobjectionsto those proceedings which are relied upon for a reversal of the judgment, without any argument or the assignment of any specific reasons in support of the objections thus indicated, is not a sufficient brief Millikan v State, 70 Ind 283 Texa S In briefs, each point under each one of the assignments relied on shall be stated in the shape of a prop- osition, with the substance of such parts of the record as are necessary and sufficient to support the proposi- tio N This rule was not complied with by the following statement under an assignment of error: " The pleadings showed that plaintiff had not done equity, and hence the exceptions should have prevailed," to which "proposition" there was appended the following: " The plaintiff admits enough in his plea to show that the trade was a fair one, for a valid con- sideratio N" The court could not from this statement decide the " point," if any, relied on, without an examination of the recor d Lanyon v Edwards (Tex Civ App, 1894), 26 S W Rep 524 See Sloan v Thompson, 4 Tex Civ App 419 An assignment with no proposition under it will not be considere d Gal- veston, etc, RCo v Bowman (Tex Civ App, 1894), 25 S W Rep 140; Alamo F In S Co v Lancaster (Tex Civ App, 1894), 28 S W Rep 126 Where Cross-assignments are not re- ferred to in the brief of the appellee, and the independent propositions con- tained in the brief are not predicated upon the cross-assignments, or in any way germane to them, they can- not be considere d Willis v Smith, 72 Tex 565- How Question Aros e The brief in discussing the assignments of error should state by reference to the record how the question aros e " Many briefs which reach this court could be im- proved by giving more concise pre- liminary statements, and fuller exposi- tions of the record under the assign- ment S Each assignment or proposi- tion should be accompanied by an opposite statement, when the matter has not been previously stated under some other propositio N" Gallagher v Goldfrank, 75 Tex 562 See John- son v Flint, 75 Tex 379 A brief containing assignments of error, with no statements following anyone of the propositions submitted under the assignments, is insufficient, and will be disregarded, as though not filed in the case, where the other party has filed a proper brief; and the case will be decided upon a considera- tion of the latter alon e New Bir- mingham Iron, etc, Co v Boyd (Tex Civ App, 1893), 22 S W Rep 240; Parker County v Jackson, 5 Tex Civ App 36 In Michigan a statement in the brief of counsel that "we submit that all of these assignments of error which relate to the charge of the court are well take N We submit that the instruction covered by such assign- ments of error, and given by the trial court, tended to mislead the jury, and did mislead them, as shown by the verdict rendered in the cause," is not a sufficient compliance with a rule re- quiring argument of errors assigne d Opposing counsel do not receive any benefit from such a general statement. Mason v Partrick, 100 Mich 577 U S SupremeCourt Statute not Printed in Brief .

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Mere general statements without specific Post Date: Sun, 27 Jul 2008 9:27:41 +0000
Whereacase was submitted, but the briefs of both parties were in disregard of the rule of court provid- ing that " when a statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length," the submission was set aside, and the cause restored to its place on the docket. School DiSt No 56 v St Joseph F, etc, In S Co, 101 U S 472 Sufficient Brief S In Missouri, where a statement and brief, however in- artificial, sufficiently advise the court and adverse counsel of the errors complained of the case will not be dismissed on motio N Houck v Brid- well 28 Mo App 644 cient to merely state that a ruling of the court below was right or wrong, without adducing any reasons or attempting to show why it was right or wron g There must be some discussion or argument of a point, to entitle it to the consideration of the court. Mere general statements without specific application are worthles S 1 A brief which, after stating the substance of a complaint, continued: "We are not sanguine as to the in- sufficiency of the complaint, but in- clined to think that it fails to show that no new interests have intervened since the judgment.

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Under such circumstances the court Post Date: Sun, 27 Jul 2008 9:16:43 +0000
We ask the court to look into it," was sufficient to require a decision on the point. Coon v Welborn, 83 Ind 230 1 Cobb v Taylor, 133 Ind 605 To merely allege in a brief that the court should have given judgment a certain way, without indicating why it should have been done, is not suffi- cient. Under such circumstances the court cannot be expected to examine the questio N Cooper v Robertson, 87 Ind 222 And for counsel to merely refer to an instruction given below, and then state that in their opinion the instruction does not correctly state the law, is not sufficient.

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It is no- better than Post Date: Sun, 27 Jul 2008 9:05:31 +0000
Smith v McDaniel, 5 Ind App 581 Mere restatement of causes for new trial is not sufficient. Louisville, etc, RCo v Donnegan, in Ind 179 Illustrations of Sufficient Argument Asking Court to Read Carefully, Where the whole argument of the appellant, on the assignment of error that the verdict was not sustained by sufficient evidence, consisted of the following: " We ask the court to give the evidence a careful reading; not to decide upon its weight, but such reading will convince the court that the jury must have been misled by the instructions of the court," the court decided that the assignment must be considered waive d Knisely v Hire, 2 Ind App 86 Appellant filed a paper which, omitting the name of the court, the parties, and counsel, was simply: " Appellant's Brief We are clearly of the opinion that the judgment of the court below ought to be reversed, and therefore demand that it be don e Respectfully and seriousl Y" Said the court: " It is quite clear that the paper filed in the case under con- sideration was filed simply to evade the rule of court and to avoid its operatio N" Deford v Urbain, 42 Ind 476 Grounds of DemurreRAnd the following brief was held to be about as explicit: " Appellant cannot in this cause discuss the reasons upon which the court below sustained the demur- rer to the complaint, for the reason that the court below did not announce the reason S The only question is, Is the appellant's complaint sufficient upon which to base his action ? The demurrer, of course, admits the facts stated as tru e" " To say that counsel cannot discuss the reasons upon which the court below decided the case, or to notify the court that the question is upon the sufficiency of the complaint, without making any suggestion, or citing any authority, as in this case, does not purport to be a statement for the information of the court. It is no- better than a blank sheet.

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" Per Peters, CJ Post Date: Sun, 27 Jul 2008 8:45:52 +0000
" Per Os- born, J , in Gardner S Stover, 43 Ind 356 Likewise, where a demurrer is overruled, the grounds for it must be stated in appellant's brief Lackey v Hernby, 9 Ind 536 Where the whole discussion, in the appellant's brief on the assignment of error that the court erred in sustaining the appellee's demurrer to a para- graph of the appellant's answer, was, "an insufficient answer is a sufficient answer to an insufficient complaint," it seemed to the court to be a virtual admission of the insufficiency of the paragrap H Wagner v Wagner, 73 Ind 135 Insisting on an Assignment. "It affords the court no assistance to say, such and such an 'assignment of error is insisted o N' It must be in- sisted on in the proper way; that is, by argument pointing out the pur- pose and validity of the assignment or by brief of authorities from decided cases for like purpose, or principles from books of admitted credit." Per Peters, CJ, in Ashley v Martin, 50 Ala 537- A brief which, after setting out an assignment of errors, contained the following statement: " Believing that A brief which is no more than a mere history of the case or abstract of the record is entirely insufficient.

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Ar- buckle v Biederman, 94 Post Date: Sun, 27 Jul 2008 8:29:04 +0000
Counsel must state the errors of the court below, as as- signed by the appellants, are so mani- fest as to make the judgment appear clearly wrong and unsupported either by law or the evidence, we refrain from further argument and submit the cause," did not sufficiently discuss the assignment, which was accordingly held waive d Wilson v Kahn, 4 Ind App 165 Merely Calling Attention of Court to Certain Matter S The statement, " We will content ourselves in this brief by merely calling the attention of the court to these questions, with the sug- gestion that in the admission of the evidence pointed out, and to which the appellant at the time objected, the trial court erred, and that the appel- lant is entitled to the consideration of these errors," was not a sufficient dis- cussio N Chicago, etc, Coal RCo v Hunter, 128 Ind 213 The following was not sufficient to suggest any error: " With equal con- fidence and without argument, because the instruction is its own best de- fender, we call attention to instruction No 10, which the court refused to giv e" Heltonville Mfg Co v Fields (Ind, 1894), 36 N E Rep 529 Discussion of Evidenc e A state- ment in counsel's brief that evidence tending to prove a certain fact was objected to and improperly admitted, without any further specification, is no better than the statement that evi- dence contained on certain pages of the record was improperly admitted, without stating the evidenc e Con- noble v Clark, 38 Mo App 476 Where it is alleged that certain evi- dence has been erroneously admitted, a mere reference in the brief to the grounds of objection stated in the trial court, and insisting that the objection there made should have been sus- tained, is not a sufficient discussio N Baldwin v Threlkeld, 8 Ind App 312 A statement in a brief, upon in- structions complained of, that " in view of the evidence the instructions of the court were clearly error," was not sufficient. Joyce v White, 95 Ca L 236 Where an assignment of errors is upon the overruling of objections to numerous separate questions, and the brief does not specifically designate wherein the questions were improper, and the error is not apparent of record, the assignment will not be considere d Filley z/ Walker, 28 Neb 506 The bearing of the propositions argued in the brief upon the facts of the case should be show N Isaac v Bohn- Verdin Lumber Co, 47 Mo App 30 Merely Referring to Recor d The following was held an insufficient dis- cussion in a brief: " Having made so clear a case for reversal of the order denying a new trial on the facts of the case, so far as errors are concerned, we here simply point out where they are to be found in the transcript," to which was added a list of the folios of the recor d Neylan v Green, 82Cal128 "Where the legal proposition in- volved in an instruction is not in some way stated in the brief of counsel, and nothing more is done than to indicate to the court the page of a voluminous record on which it may be found, with some general observations concerning it, the objections to it will not be con- sidere d" Northwestern Mut L In S Co -v Hazelett, 105 Ind 212; La Rose v Logansport Nat Bank, 102 Ind 347- Where the sustaining of a demurrer to a paragraph of an answer is as- signed as error, but the only discus- sion of it is by giving a reference to the page and line of the record where the answer may be found, the ruling must be regarded as waive d W 7 right v McLarinan, 92 Ind 103 General Statement S A brief which simply states that the appellant refers to the opinion of the court below as his best argument for reversal is very defectiv e McDonald v McLeod, 3 Colo App 344 A statement substantially that the court erred, and that the affidavits will show it, is not a sufficient discussion to prevent a waiver of a point. Ar- buckle v Biederman, 94 Ind 168 A mere general statement of counsel that the findings of fact do not sup- port the conclusions of law stated by the court, without pointing out in his brief why the conclusions are errone- ous, is not sufficient to cause the court to decide the point.

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Diamond Tunnel Gold, etc, Mi Post Date: Sun, 27 Jul 2008 8:15:41 +0000
Collins v McDuffie, 89 Ind 562 3 Disrespectful Languag e Briefs must be in decorous language, respectful to the court, the parties, counsel, and all persons named in the M 2 Disrespect to the judge who tried the case below is especially obnoxiou S 3 Merely Stating Queitio N A brief should not merely point out the ques- tions for decision, but should contain some argument upon the infirmity of the ruling belo W Acra v Cornforth, 4 Ind App 496 See Watson v Deeds, 3 Ind App 75 1 A paper giving merely a history of the case, and stating that " appel- lants contend that the sheriff's sale was not complete till July 7, 1882," is not a sufficient brief Liggett v Fire- stone, 102 Ind 514 Copy of Pleadin g A paper which is merely a copy of the pleading in the record is not a brief McCann v Rodifer, 90 Ind 602 See also Kaster v Kaster, 93 Ind 581; Pratt v Allen, 95 Ind 404 Statement of Leading Fact S In Keyes v Houston, etc, RCo, 50 Tex 169, a brief "in the nature more of a continued statement of leading facts " and some of those not accu- rately stated than of a discussion of the points of law presented by the record, and which did not cite a sin- gle authority in support of its asser- tions and conclusions, was severely criticised by the court. 2 Confrey v Stark, 73 111 187; Smith- v Bingman, 3 111 App 65 Character notlnyolre d " Where the character of the parties or the attor- neys is not involved in the case, all references and comments of a per- sonal nature by a party in his briefs are entirely out of place, and are in the nature of an admission that there is not sufficient merit in his side of the controversy to warrant him in relying thereon, and hence that it is Accessary to direct attention to the faults or fail- ings of the adverse party or his attor- ne Y It is not complimentary to a court to suppose that such statements would divert its attention from the points at issue or be given the slight- est weight; and they should be omit- te d Neither will attacks nor insinua- tions against the trial judge be coun- tenance d" Flanagan v Elton, 34 Neb 355 The court has a right to assume, when considering questions argued in a brief, that the discussion therein is pertinent to some question presented by the recor d Law v Grimes Dry Goods Co, 38 Neb 215 Accusing Opposite Counse L A brief charging the opposite counsel with subornation of perjury was held to be a gross violation of professional ethics, and was stricken out, with per- mission to file another in ten day S Cramer v Tittle, 79Cal332 3 Attack upon the Judiciar Y Where the scandalous matter consists of such an unwarranted attack upon the trial judge as to amount to a scandal- ous and impertinent attack upon the judiciary, the court may of its own motion strike it from the file S Tom- linson v Territory ( N Mex, 1893), 33 Pa C Rep 950 A brief referring to the judge below in language wholly unnecessary and grossly improper was stricken out. Diamond Tunnel Gold, etc, Mi N Co v Faulkner, 17 Colo9 In Confrey v Stark, 73 111 187, and in Paine v Frost, 67 Iowa 282, indecorous language towards the- judge below was condemned and cen- sure d Illustration S A brief containing the following: " The judgment Schiff- bauer v Ganzer was a snap judg- ment to which the judge hearing the demurrer seems, from the record, to have been a party;" and, " This rul- ing was made either by an ignoramus or with the ulterior purpose of wrong- ing the plaintiff in error," was stricken from the files, the court saying: "Ccunsel must confine their argu- ments to the merits of the cases in hand, and not indulge in libels upon the trial judges, or cease to practise in this court.

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4 On Appea L Post Date: Sun, 27 Jul 2008 7:56:46 +0000
" Ganzer v Schiffbauer, 40 Neb 633 And a brief which stated: " The court, out of the fulness of his love for a cause, the parties to it, or their counsel, or from an overzealous desire to adjudicate ' all matters, points, arguments, and things, 1 could striking off File S If this rule is violated the brief will be stricken from the files, 1 with leave, however, to file a propr brief within a certain ti Me 8 The party moving to strike out such a brief should in his own brief point out the objectionable languag e 3 Iv FILING AND SERVING 1 Generally in Lower Court. On the trial of the case below, briefs are sometimes, by rule of the court, required to be filed when the case is submitted without oral argument. 4 On Appea L In some states the filing of briefs in the appellate court is required by statute ; 5 but in most the practice is regu- lated by rules of court.

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Where a brief contains allegations Post Date: Sun, 27 Jul 2008 7:40:53 +0000
6 not, with any degree of propriety under the law, patch and doctor up the case of the plaintiffs, which perhaps the carelessness of their counsel had left in such a condition as to entitle them to no relief whatever," was or- dered to be stricken from the files, with leave to file another in thirty day S Sears v Starbird, 75Cal91; Friedlander v Sumner Gold, etc, Mi N Co, 61Cal116 Slang Phrases and Ridiculous Lan- guag e "Argument is the principal purpose of the brief, and this kind of wit and ridicule is not argument. The use of slang phrases and ridiculous language, especially when directed to the proceedings of the court, should have no place in a brief" Per Gal- braith, J, in Brownell v McCormick, 7 Mont 12 1 Chicago, etc, RCo v Brago- nier, 13 111 App 467; Eureka Steam Heating Co -v Sloteman, 69 Wi S 398, and cases cited in previous not e But see Smith v McFadden, 56 Iowa 482 United States Supreme Court. Where a brief contains allegations wholly aside from the charges made in the complaint, bearing reproachfully upon the moral character of individuals, and being clearly impertinent, scan- dalous, and unfit to be submitted to the court, it will be stricken from the files of the Supreme Court.

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