Laws

Corporate Liabilit Y Post Date: Sun, 27 Jul 2008 12:28:03 +0000
An indictment which alleges the act of incorporation, the building and use of a bridge, and "that the defendants were bound to keep and maintain the same in such a' condition as to render the same safe and convenient for travelers," and as a breach, "that the defendants, regardless of their duty in this behalf, negligently and wilfully suffered and permitted said bridge to be and remain in such condition as to render it un- safe and inconvenient for travelers, by neglecting to keep the same prop- erly and suitably lighted in the night- time, to the great damage and com- mon nuisance," etc, has been held sufficient. It was held unnecessary to allege that defendants were bound to light the bridge, in order to show that such nonlighting was the pith of the offense charge d Co M v Central Bridge Co, 12 Cus H (Mas S) 242 Highway Bridg e An indictment for not repairing a highway, or for not making a new highway, is insufficient, where the offense is a failure to build or repair a bridge; the charge should be a failure or neglect to make or repair a bridge in a highwa Y State v Canterbury, 28 N H 195 Preventing Navigatio N In State v Portland, etc, RCo, 57 Me 402, the charter of the railroad company authorized the erection of a bridge across navigable waters, provided the same was so constructed as not to prevent navigatio N The indictment set forth that the bridge obstructed and impeded navigation, and was held to be bad because it did not allege, heec verba, that the bridge prevented navigatio N 1 The statement of a ground of liability not recognized by law will be fata L Lewis v State, 41 Ala 414 Commissioners of Highways Fund S In People v Adsit, 2 Hill ( N Y) 619, it was held that the commissioners of highways could not be indicted for the nonrepair of a bridge unless they wilfully and unlawfully refused to employ funds that they had on hand; and the possession of such funds should be averred in the indictment. Corporate Liabilit Y In the case of Co M v Chase, 127 Mas S 7, it was also held that the allegation that the bridge in question was " duly erected and legally maintained as such draw- bridge by said corporation," was a sufficient allegation that the corpora- tion had a right to maintain the bridg e Individual liabilit Y An indictment against an individual for permitting a public bridge, which he is bound to keep in repair, to become dangerous, must set forth how he became subject to such dut Y State v King, 3 Ire d (N Car) 411 Judicial Cognizanc e In Reg v Ely, 4 New Ses S Ca S 222, 15 QB 827, 14 JuR956, 19 L J M C 223, an in- dictment against the inhabitants of the isle of Ely and county of Cambridge averredthat theywere liable, but stated no special reason therefoRThe plea averred that "the bridge was in a public highway, over an artificial cut made in the highway by the adven- turers for draining the Bedford level; that the cut was maintained by the adventurers until a statute, when the property in the cut and its banks, and in the bridge, and in the lands bene- fited by the cut, which lands had been previously vested in the adventurers, became vested in the corporation of the conservators of the fens, and the cut was from that time maintained by the corporation for their own benefit; and they have repaired and been liable to repair the bridg e" The count was held good, as the court was obliged to take judicial notice that the isle of Ely was a division of a county in the nature of a riding, and, as suc H/rzwa facie liable to repair bridges within it.

Autor of the post: Undefined

This indictment was held bad Post Date: Sun, 27 Jul 2008 12:09:41 +0000
It was also held that the plea sufficiently showed that the corpora- tion were liable to repair the bridge rendered necessary by the cut main- tained for their benefit. Parish Liabilit Y The indictment in Rex v Penegoes, 3 d R388, 2B C 166, was for not repairing an ancient bridge, described as being situate within the parish of p M, and averred that the inhabitants of p, and those of the township of M, afore- said, were liable to repair such bridge, without proceeding to state what part of it was situate in the township of M, and that the inhabitants thereof were liable to repair it. This indictment was held bad, as no special or sufficient consideration was shown to render the inhabitants of the township liable to repair, as they could not hold land, and consequently could not be liable ratione tenure S But the indictment in Reg v Ad- derbury, d M 324, 5 QB 187, 13 L J M C 91, 7 JuR1035, which was similar, except that it described the part of the bridge in each parish and the part that each was to maintain, was held sufficient.

Autor of the post: Undefined

" Briefs and -viva voce Post Date: Sun, 27 Jul 2008 11:57:07 +0000
Town Liabilit Y The case of Sauk- ville v State, 69 Wi S 178, held that an indictment which stated that the inhabitants of the town were bound to repair, etc, was not open to the ob- jection that it did not sufficiently allege the obligation resting upon the tow N is synonymous with the term "points and authoritie S" 1 Its Object is primarily to aid the court in the decision of the case presented, 2 but also to assist the counsel in the presentation of the case, 3 and through both to benefit the public by facilitating the administration of justic e 4 It forms no part of the pleading S 5 I I FOE M The value of a brief depends very largely upon the form in which it is prepare d No general rule can be pre- scribed concerning the method and order of presenting the matTer In most cases the statement of facts should precede the legal argument, but in many it will be expedient to treat the law and facts concurrentl Y 6 be as full as required by an attorney to counse L Still, it should at least purport to furnish the court some in- formation; some aid in deciding the cas e An attempt should be made to show why the judgment of the court below should be reversed or affirme d" Gardner v StoveR43 Ind 356 1 " A moment's examination of the rule will show that the terms 'brief and ' points and authorities ' are used as synonymous, which they in fact are (as the term 'brief is used in this country), both being a condensed statement of the propositions of law which the counsel desire to establish, and indicating the reasons and author- ities which sustain the M" Duncan v Kohler, 37 Min N 379 A Brief of Evidence, which is a mere report of the trial by questions and answers, is not such a brief as the law of Georgia contemplates for use in the Supreme Court. Stubbs v State, 86 Ga 773 Paper-boo K A brief is not the same as a "paper-book," which is more in the nature of a transcript or recor d Bouv Law Diet, tit Paper-book; Armstrong's Appeal, 68 Pa St 409; Searles v Thompson, 18 Min N 316 2 "The object in requiring printed briefs of points and authorities, is to aid the court in considering the case, as well as to advise counsel of the questions to be presented, and the au- thorities to be relied upon in reference to the M" Anonymous, 40 111 57; Gray v Schenck/3 How Pr ( N Y Supreme Ct) 231 3 The leading purpose of the Su- preme Court of Texas in requiring the filing of assignments of errors and briefs was to facilitate and more ef- fectually aid attorneys to represent their cases in the court without ap- pearing before it in person, if they did not desire to do So For, to accomplish this it is necessary for the appellee or defendant in error to see the assign- ments of error and brief which by the rules of the court he is called upon to answeRShanks v Carroll, 50 Tex 17- 4 Value of Briefs Public Benefit. " Briefs and -viva voce argument, es- pecially the latter, accompanied by the aid to memory offered by the former, are of inestimable value in enabling a court to plant its decisions upon sound and enduring principle S This it is that furnishes the best possible and easiest applicable check upon and safeguard against hasty and injurious adjudicatio N Our rule requiring briefs was not adopted for the indi- vidual convenience of the justices, but for the good of the general publi C We regard it as a most beneficent and salutary provision, and are disposed to insist on a strict compliance with it.

Autor of the post: Undefined

" 43 Al b L Post Date: Sun, 27 Jul 2008 11:43:27 +0000
" Per Greene, CJ, in Oregon R, etc, Co v O'Brien, 3 Wash Ter 21 Convenience of Court. But in Sheehan v Levy, i Wash 149, where a motion was made to strike out the appellant's brief because it did not contain the pleadings and an abstract of the case, as required by rule of court, it was held that, inasmuch as the matter omitted was required purely for the convenient reference and information of the court, such a motion was direct- ed entirely to its discretion; and under the circumstances of the case the mo- tion was dismisse d 5 As the brief of counsel forms no part of the pleadings in a cause, a plea of prescription in a written argu- ment, not filed in the record, cannot be considere d Dejol v Johnson, 12 La An N 853 And a request in a brief for an amendment of a judgment will not be notice d Lacey v Police Jury, 28 La An N 455 6 But in every case there should Spacing and Typ e The spacing should always be generous and the subdivisions of the subject clearly marke d Important matter should be printed in italics or heavy black letter S 1 Typewritin g In nearly every state printed briefs are required ; a and a typewritten brief will be stricken from the file S 3 be a definite theory of arrangement, which should be consistently adhered t O Elliott App Pro, 442 Waiver of Eule by Agreement of Partie S Where a rule of court pre- scribes the form of briefs, it cannot be waived by agreement of partie S Gal- veston, etc, RCo v Crawford (Tex Civ App, 1894), 27 S W Rep 822 Carelessly Prepared Brief Where the appellee's brief was carelessly pre- pared, giving the court trouble in the examination cf the case, the cost of it was taxed against hi M Fair -v Brown, 40 Iowa 209 1 Spacing and Emphasi S " Many very learned briefs are vexatiously inconvenient of reference because of the want of spacing and emphasi S Judges who desire to refer quickly to a certain part of an argument must be seriously hindered sometimes by this slovenly lack of proper arrangement, by which the pages are closely huddled up, and every observation is on a typographical level with the reSt The points themselves should be printed in a bold, heavy-faced letter, and subordinate matter may be put in capitals, italics, or common type, ac- cording to its importanc e Every authority should be in a separate lin e Generous spacing should be made, and indentation can be put to good us e One brief and only one that we have come across, had a line at the top of each page, stating the contents of the page; this is especially useful in referring to summaries of testimon Y This matter is just as important as emphasis is in oral argu- ment." 43 Al b L J 345 But neither should the other ex- treme be adopte d " Some lawyers, in having a brief printed, use every variety of type that is in the printing- office, from small italics to gigantic capital S We have even seen a large hand pointing to particularly impress- ive passage S All this is an ab- surdity, but it is only an exaggeration of what is the true theory of a brief, that is, to call the attention of the court in some way to the points which are deemed especially important.

Autor of the post: Undefined

2 For this purpose portions Post Date: Sun, 27 Jul 2008 11:27:41 +0000
One of the best ways of doing this is to print such passages in full-faced letter S" "On Making a Brief on Appeal," N Y Law Journal; cited, and quoted as above, in Elliott App Pro, 444, note I 2 Written Brief S Rule 6 of the Su- preme Court of South Carolina, re- quiring a service of three copies of the appellant's brief on the respond- ent's attorney, but being silent as to whether they should be in writing or in print, was sufficiently complied with by a tender of manuscript copie S By an amendment to the rule printed copies are now require d Detheridge v Gilreath, 14 S Car 616 But see Hodge v Fabian, 31 S Car 212 Where in a suit for divorce the wife was unable to pay for printing the papers, and it appeared that the ap- peal was not a frivolous one, an order was made allowing her to present the appeal on written copies of the record and point S Fagan v Fagan, 39 Hun ( N Y) 531 In Illinois the argument of coun- sel may be in writing, but where it is, printed briefs must be filed in addi- tio N Gochenour v Mowry, 40 111 57 3 Typewritten Briefs are not a compliance with a rule of court which requires printed briefs, and will be stricken from the file S Carroll v Holmes, 19 111 App 564 "To hold that typewriting may take the place of printing would be to nullify the rul e It would resolve itself simply into the question of the legibility of the paper presented for an abstract or brief; and in this view, a manuscript, well written, with unexceptional pen- manship, could as well be held to be a compliance with the rule demanding 'printin g'" Johnson County v Bry- son, 26 Mo App 484 In Washington such a brief will be stricken out and the judgment af- firme d State v Oleson (Wash, 1894), 37 Pac Rep 419 In Texas the brief filed must be plainly written, and if it covers more II I CONTENTS 1 Generall Y A brief should contain a succinct statement of such facts J in the case as are essential to an under- standing of the questions to be discussed; a clear 2 presentation of the points or propositions desired to be submitted to the con- sideration of the court, 3 with the citation of authorities, if pos- than eight pages of foolscap must be printe d Accordingly, where a brief was filed, closely typewritten, upon thin paper, partly in very small type, the writing on some of the pages be- ing very indistinct and on others in ink, sorely taxing the eyes to read, and the whole containing enough to cover over twenty written pages, it was stricken out, and the appellant was required to file copies of his brief, properly written or printed, within twenty day S Heath v Hall (Tex Civ App , 1894), 27 S W Rep 160 In Vance v Hogue,35 Tex 432, the court said, that as they had not been able to decipher the brief of the ap- pellant within the time limited to them for such purposes, they had been compelled to determine the case with- out its ai d " The rules of the court are not complied with by printing briefs with a typewriter, when they consist of more than eight pages ; and when badly copied and upon thin paper they are unacceptable, no matter what may be their lengt H Hereafter no brief of over eight pages will be re- ceived when printed in this way; nor even when of less length, unless the typewriting is clear and perfectly legibl e" Tex Nat Bank z, Loven- berg, 63 Tex 506 1 It will generally be well to state the facts chronologicall Y Pleadings and Abstract of Cas e The fact that a transcript is not voluminous and the evidence is contained in a commendably terse agreed statement of facts, is not a good excuse for fail- ing to comply with a rule requiring a brief to contain the pleadings and an abstract of the cas e Sheehan v Levy, I Wash 149 2 Briefs must present points clearl Y Where a number of briefs, counter- briefs, and supplemental briefs were filed, but from all no intelligent idea of the case could be gained, and the in- structions of the court below, given of its own motion, were not preserved, it was presumed that the court below ruled correctl Y Long v Long, 96 Mo 1 80 3 Wisconsi N The rules of the Su- preme Court of Wisconsin require the briefs on both sides to contain a succinct statement of so much of the record as is essential to an under- standing of the questions discusse d There should be a statement not only of the substance of the pleadings, when questions arise upon them, but also of the leading facts established by the evidence, where questions of fact are to be determine d The appeal will be peremptorily dismissed if there is a failure to substantially comply with this rul e Heath RSilverthorn Lead Mi N, etc, Co, 39 Wi S 146 South Carolina On appeal, the brief or statement of facts should not only disclose the general nature of the issue, but the questions of law and fact should be stated to such an extent as to make apparent the bearing of the error complained of upon the sub- stantial merits of the cas e Trotter v Robinson, 6 S Car 410 In Texas, New York, Nevada, and Illinois it seems that the brief proper does not include an "argument." " It is a fundamental requirement, that the brief upon which a cause is to be submitted to this court, after *he general and succinct statement of the nature and result of the suit (not a particular and detailed ac- count of the entire action), which is intended as a mere introduction to the consideration of the questions to be decided, must exhibit, in the shape of a separate proposition, tersely and distinctly, each point embraced in each assignment of error taken in the cas e * * * The brief contemplated and re- quired by the rules should, in short, embrace nothing but the propositions set forth clearly, distinctly, and sepa- rately relied upon for the reversal of the judgment, the matters in the rec- ord pertinent to the proper determi- nation of each proposition, and a citation simply of the authorities relied upon to maintain the validity or correctness of the propositions thus asserted; while all inferences and de- ductions, either from the authorities cited or from matters in the record sible, in support of them ; * and the application to them of the evi- dence in the case pointed out. 2 For this purpose portions of the evidence should not be stated in full, but only the substance of thus stated, are to be presented to the court by an oral, written, or printed argument.

Autor of the post: Undefined

But the argument itself, written Post Date: Sun, 27 Jul 2008 11:08:11 +0000
" Per Moore, CJ, in Shanks v Carroll, 50 Tex 17 " The object of points is to furnish the court with the leading positions insisted on by the counsel; or in other words the heads of his argument. Under these it is customary and allow- able to subjoin the authorities in- tended to be used on the argument. But the argument itself, written out at length, or even an extended abridg- ment of it, is not a proper charge [for preparing the points] against the ad- verse party, under the name of point S" Per Willard, J, in Gray v Schenck, 3 Ho W Pr ( N Y Supreme Ct) 231 Briefs do not constitute an entire "argument" on the merits referred to in a rule of the Supreme Court of Nevad A State v California Mi N Co, 13 Nev 203 In Illinois, where the argument may be in writing if a printed brief is also filed (Gochenour v Mowry, 40 111 57), even a printed argument by itself will not suffice, unless the counsel sets down in it a clear, distinct statement of the points intended to be elabo- rated, with the authorities in support of them immediately followin g Gil- lespie -v Rout, 40 111 58 In Indiana a brief should both point out the questions for discussion, and contain some argument or statement of the infirmity of the rulings relied upon for a reversa L Acra v Corn- forth, 4 Ind App 496; Nowlin v Whipple, 89 Ind 490; Irwin v Lowe, 89 Ind 540; McCann v Rodifer, 90 Ind 602; Newcomer v Hutchings, 96 Ind 119; Landwerlen v Wheeler, 106 Ind 523; Bonnel v Shirley, 131 Ind 362; Eppert v Hall, 133 Ind 417 1 The maxim that quality should be preferred to quantity finds no bet- ter illustration than in the citation of case S Says Dillon, J, in i Columbia Jurist, 125, 14 A M Law Re C 53, 56: "A citation of a case under a given proposition ought, unless distinctly otherwise stated, to be equivalent to an implied professional certificate that, in tne writer's judgment, the case cited is an express authority in sup- port of such propositio N" In Citing Text-books the edition should be given, when there has been more than one editio N Elliott App Pro, 447 Names of Partie S In Illinois briefs filed by counsel will not be regarded unless they conform to the rule of court which provides that "in citing cases from published reports, counsel will be required not only to give the book and page, but also names of the parties as they appear in the title of the reported cas e" Without the names, if there is a mistake in the page, the case cannot readily be foun d Snell v Stanley, 63 111 391 This is substantially the rule in most of the state S See St Louis Ct App, rule 17; Kansas City Ct App, rule 16; Mo Su P Ct, rule 15 In Missouri when authorities are cited without any designation of point or legal proposition, the brief is ob- jectionabl e Hatch v Hanson, 46 Mo App 323 2 Where exceptions have been taken to the ruling of the court below, and errors specially assigned, the evi- dence bearing upon the question and showing the error of the court must be singled out and referred to either in the exception itself or in the brief of counse L Green v Castleberry, 77 N Car 164 Where an appellant makes the point that certain questions should have been submitted to the jury, but does not refer either in his brief or else- where to any evidence which would have rendered such submission proper, for this reason alone the point should be overrule d Le Roy, etc, RCo v Crum, 39 Ka N 642 An assignment upon the admission of evidence will be disregarded where neither statement nor brief points out the evidenc e Tuttle v Davis, 48 Mo App 9 In Tennessee exceptions to the report of referees must be accompanied by a brief citing in most concise manner the specific testimony relied upon, designating the page of the record as well as authoritie S Thompson v Watson, 12 Lea (Tenn) 390; Hunting- don v Mullins, 16 Lea (Tenn) 738; Loveman v Taylor, 85 Tenn 8 them, with accurate reference to the page and line of the record where they may be foun d 1 Particular errors relied upon should be pointed out, 2 and confusion should, in general, be avoided by discussing the several errors separatel Y 3 It is sometimes re- 1 References to the Record should be frequent enough to clearly point out the material evidenc e Lincoln v Sun Vapor Street-Light Co, 59 Fed Rep 756 Tennessee On appeal to the Su- preme Court, exceptions to the report of referees must be accompanied by a brief citing in most concise manner the specific testimony relied upon, designating page of record, as well as authoritie S Thompson v Watson, 12 Lea (Tenn) 390 Indiana Under the long-established rule of the Supreme Court of Indiana counsel should in their briefs refer specifically to the errors by page and line of the record, and discuss them with clearness and precisio N Harrison v Hedges, 60 Ind 266; Beigh -v Smarr, 62 Ind 400; Sanders v Scott, 68 Ind 130; Rout v Woods, 67 Ind 319; Anderson v Neal, 88 Ind 317; Louisville, etc, RCo v Donnt- gan, in Ind 179 The Appellee must make like refer- ence when he assigns cross-error S Bowman v Simpson, 68 Ind 229 Effect of not Making Referenc e Al- though such reference is required by rule of court, " the court would not, probably, be disposed to in all cases avail itself of the defect of want of reference to the lines of the tran- script.

Autor of the post: Undefined

" Brunner v Brennan, 49 Ind Post Date: Sun, 27 Jul 2008 10:51:51 +0000
" Parker v Hastings, 12 Ind In Kansas judgment will not be re- versed for evidence introduced, if it is not pointed out in the brief where such evidence may be found in the recor d Eggleston v Austin, 27 Ka N Insufficient Referenc e Where by rule the brief is required to refer specifically to the page of the record which counsel desire to have exam- ined, a reference to " pages i to 160, inclusive," is not sufficient. State v McCool, 34 Ka N 613; Moxley v Has- kin, 39 Ka N 653 A brief referring to the abstract should recite the pag e Herriott v Kersey, 69 Iowa i N See also Fowler v Gilbert, 38 Mich 292 2 Phenix In S Co v Reams, 37 Neb 423; Topek A et C University of Builders v Martin, 39 Ka N 750; Heady v Wood, 6 Ind 82; Murphy v Evans, 13 Ind 489; May v McCray, 14 Ind 88 " We are not inclined, nor does our duty require us, to wade through the record in search of errors that are not pointed out." Brunner v Brennan, 49 Ind 98; Lowder v Lowder, 58 Ind 533 Assignments of Error, in Missouri, made in the appellant's brief, have al- ways been considered sufficient, and are deemed preferable to the formal assignments of error which are filed in compliance with the statute, but which rarely, if ever, advise the court of the real grounds of complaint.

Autor of the post: Undefined

This rule was adopted Post Date: Sun, 27 Jul 2008 10:39:05 +0000
Campbell v Carroll, 35 Mo App 640 3 McCormack v Phillips, 4 Dak Ter 506 Missour I When errors are assigned by brief, " in order to aid the court in its examination of them each sup- posed error should be separately as- signed, and cases should not be cited en masse to a collection of assignments of error; but the cases to which coun- sel ask the attention of the court, in connection with each assignment, should be cited to that assignment." Honeycutt v St Louis, etc, RCo, 40 Mo App 674 Minnesota By rule of court an as- signment of errors must be prefixed to the brief of the appellant, but stated separately from it. This rule was adopted to correct the bad practice of confusing the discussion of various points by running them togetheRDuncan v Kohler, 37 Min N 379 In Woodbury v Day, 24 Min N 463, the court declined to examine thirty or forty exceptions referred to en masse in a brief, without any specifications wherein any alleged error existe d Circuit Court of Appeals Exclusion of Immaterial Question S The rule of *he United States Circuit Court of Ap- peals, which is the same as that of the Supreme Court, 'especially as to the specifications of the assignments of error and the questions to be dis- cussed, will be strictly enforced, so that the vital issues in the case may be presented, and frivolous and im quired that assignments of error shall be copied in the brief, and when not so copied therein they will not be considere d 1 Ques- tions not included in the record should not be treate d 2 State- material questions exclude d Lincoln v Sun Vapor Street-Light Co , 59 Fed Rep 756 The intention of the rule of the Circuit Court of Appeals is that each specification of the brief shall conform substantially, if not literally, to the particular assignment of error on which it is predicate d " And for con- venience there ought to be, with each specification in the brief, a reference to the corresponding assignment of error as well as to the place in the bill of exceptions or other part of the record where the alleged error is show N" Vider v O'Brien, 62 Fed Rep 326 Texa S A rule of the Supreme Court of Texas provides: "The ap- pellant, or plaintiff in error, in order to prepare properly a case for submis- sion, when called shall have filed a brief of the points relied on, in ac- cordance with, and confined to, the distinct specifications of error con- tained in his assignments of error, and such fundamental errors of law as are apparent upon the record, each ground of error being separately pre- sented, and being numbered as the assignments of error are numbered; and each and every one not so sepa- rately presented shall be regarded as abandone d" Where a brief did not in form comply with this rule, not re- ferring to any of the assignments of error, but presenting three indepen- dent propositions, the judgment was affirmed without examination into the merit S New England Land, etc, Co v Chamberlain, 70 Tex 138 Defective Part Only Stricken Out.

Autor of the post: Undefined

Nail v Wabas Hetc, RCo Post Date: Sun, 27 Jul 2008 10:26:44 +0000
But in Hearn v Bitterman (Tex Civ App, 1894), 27 S W Rep 158, where in one part of the brief several assign- ments were stated together, with only one proposition under them all, fol- lowed by other statements intended to support the several assignments, thus disregarding the rule, the whole brief was not stricken out, but only the defective part. In this case it was said: "The point relied on in an assignment should be plainly and dis- tinctly presented in connection with a statement of the facts necessary to de- velop it, so that the court, by follow- ing the order of the brief, may appre- hend the questions raised for de- cisio N" Grouping Assignment S And in Texas it is the proper practice, in the prepa- ration of briefs, to group assign- ments of error; and where the assign- ments present the same question, as in the case of a defective charge, with the special instructions requested to correct the same, the practice should be commended rather than objected t O Sabine, etc, RCo v Ewing(Tex Civ App, 1892), 21 S W Rep 700; Gulf, etc, RCo v Box, 81 Tex 670 See Houston, etc, RCo v Guisar (Tex Civ App, 1894), 27 S W Rep 1045, citing International, etc, RCo v Anderson, 82 Tex 517 In Illinois, in discussing questions of error upon the admission or rejec- tion of evidence, various questions should not be groupe d Chicago City RCo v Van Vleck, 40 111 App 367 See Chicago, etc, RCo v Moffitt, 75 111 524 Points in a brief should accord with or be substantially the same as the specifications in the statement, or they should at least result from several presenting the same questio N Haw- kins v Abbott, 40Cal639 1 Pearson v Flanagan, 52 Tex 266; Tabb v Smart (Tex, 1889), 12 S W Rep 977; Chappell v Missouri Pa C RCo, 75 Tex 82; Blankenship, etc, Co v Kelly (Tex Civ App, 1893), 23 S W Rep 27; Haney v Franco-Texan Land Co (Tex Civ App, 1893), 23 S W Rep 414 See Farrar v Churchill, 135 U S 609 Where the brief of the appellants merely referred to several assign- ments by number, without setting them out or stating what they con- tained, and then summarized them with the statement that the court erred in overruling the defendant's special exceptions to the plaintiff's pe- tition, but did not set out the excep- tions, which involved several ques- tions, the assignments could not be considere d San Antonio, etc, RCo v Adams, 6 Tex Civ App 102 2 Questions presented in a brief, but not properly included in the rec- ord, cannot be considere d Jenks v School DiSt No 38, 18 Ka N 360 And ments made in a brief will be presumed to be correct unless contradicted by the opposing part Y 1 WaiveRAll the questions on which a decision of the court is desired must be discussed ; otherwise they will be regarded as waive d 3 Thus errors which have been assigned but which are a discussion of evidence not in the record will not be considere d Cook v Woodruff, 97 Ind 134 Questions not raised at the trial cannot be in- jected into the case by a brief in the appellate court. Nail v Wabas Hetc, RCo, 97 Mo 68 But where coun- sel for a party appends to his brief a certified copy of a document not in the record, the party, at least, cannot complain if the court treats it as prop- erly before the M Mott v Reyes, 45 Ca L 379 1 "The presumption is that facts stated in the brief of counsel are correctly stated, and that the record is truthfully represente d * * * It is therefore incumbent upon counsel who believe that the facts are incor- rectly stated, or the record not accu- rately represented, to contradict or explain the statements of their oppo- nent S" Elliott App Pro, 443 Where the respondent submits the case "upon the paper-book and brief of appellant," he concedes the correct- ness of the statements made in said brief Kelly v Clow Reaper Mfg Co, 20 Min N 88 Date of Commencing Actio N Where the record did not show when the action was commenced, but the date was stated in the brief of one party and not denied in that of the other party, it was accepted as tru e Greg- ory v Gregory, 102Cal50 Admission in Brief Amount of Dam- age S Where the appellant admitted in his brief that the amount of dam- ages recovered by the appellee was not excessive, if it was believed that the injuries testified to by him were received, an assignment that the ver- dict was excessive could not be con- sidere d Eddy v Newton (Tex Civ App, 1893), 22 S W Rep 533 Where the respondent recovered a judgment for the full amount sued for, and the appellant's brief claimed that the re- spondent must recover all or nothing, the court would not decide whether the judgment was rendered for a proper Amount Moore v Murdock, 26Cal514 Contents of Appellee's Brief When the appellant has filed his brief the appellee need only join issue with the appellant on the several points or propositions advanced by him if he wishes only an affirmance of the judg- ment.

Autor of the post: Undefined

Hill, 55 Ind 419; Martin Post Date: Sun, 27 Jul 2008 10:13:20 +0000
But if he does not consider the brief of the appellant a fair pres- entation of the case, he may make ob- jections to his propositions, or ad- vance propositions of his ow N Shanks v Carroll, 50 Tex 17 How Improper Brief Taken Advantage of If a brief is in any respect incor- rect or improper, advantage of it can be taken only by a proper motion ad- dressed to the court before the trial of the case on its merit S After the ar- gument on the merits, or the case has been submitted on printed arguments, it is too late to make objections of that characTer Green v Charlotte, etc, RCo, 6 S Car 342 2 Jordan v Sayre, 24 Fla i; Craw- ford v Heysinger, 123 U S 589 See Dearborn Foundry Co v Augustine, 5 Wash 67; Landers v Staten Island RCo, 13 Abb Pr, N S (Brooklyn City Ct) 338 In Indiana they are so by rule of court. Howard v Cobb, 6 Ind 5, note p 6; Bates v Bul La 6 Ind 36; Barnes v McAlilly, 6 Ind 71; Hender- son v Halliday, 10 Ind 24; Hender-' son v Burch, 10 Ind 54; Shaw v Binkard, 10 Ind 231; Zehnor v Crull, 10 Ind 547; Watkins v Columbia, 12 Ind 529; McCole v Hubble, 12 Ind 628; Vansvoorst v Vanscoy, 13 Ind 364; Matson v Jones, 13 Ind 454; Home v Williams, 23 Ind 37; Burk i. Hill, 55 Ind 419; Martin v Smith, 57 Ind 62; Yeakle v Winters, 60 Ind 554; Merrick v Leslie, 62 Ind 459; Williams v Nesbit, 65 Ind 171; Golds- berry v Stat e 69 Ind 430: Boyd v Fitch, 71 Ind 306; Bolin v Simmons, 81 Ind 92; Stockton v Lockwood, 82 Ind 158; Wright v Abbott, 85 Ind 154; Swihart v Shaffer, 87 Ind 208; Coffin v Indiana Asbury University, 92 Ind 337; Cook v Woodruff , 97 Ind 134; Louisville, etc, RCo v Grant- ham, 104 Ind 353; Smith v Mo Daniel, 5 Ind App 581 "The rule may appear harsh, but certainly if a party is dissatisfied with a deci- sion of the court below, the ground of the dissatisfaction might be pointed out and applied to the particular ruling complained of; even if the trouble is not taken to refer to au- thorities, in support of the views of such part Y The rule is also neces- sary in regard to the press of business on this court, which is so great as to preclude us, in ordinary cases, even if we were so disposed, from discharg- ing the duties of the attorney in searching the record for points, and the books for authorities, pro and co N" Per Hanna, J , in Donovan S Stewart, 15 Ind 493 See Ferris v Hayes, 16 Ind 160 Objections not pointed out in the brief will not be searched for, under the rul e Deacon v Schwartz, 18 Ind 285; Cubberly v Shearer, 20 Ind 237; Bray v Carpenter, 20 Ind 255 To simply say that a certain action of the court below was wrong is not to be regarded as making a "point," within the meaning of this rul e Cris- man v Masters, 23 Ind 319 In Georgia points not insisted on are waive d Brown v State, 82 Ga 224 Alabama It is the long-settled practice of the Supreme Court of Ala- bama not to consider any questions but those noticed in the brief or argument of the counsel for the appellant, un- less it is a question as to the want of jurisdiction, or one similar to that.

Autor of the post: Undefined

1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 | 45 | 46 | 47 | 48 | 49 | 50 | 51 | 52 | 53 | 54 | 55 | 56 | 57 | 58 | 59 | 60 | 61 | 62 | 63 | 64 | 65 | 66 | 67 | 68 | 69 | 70 | 71 | 72 | 73 | 74 | 75 | 76 | 77 | 78 | 79 | 80 | 81 | 82 | 83 | 84 | 85 | 86 | 87 | 88 | 89 | 90 | 91 | 92 | 93 | 94 | 95 | 96 | 97 | 98 | 99 | 100 | 101 | 102 | 103 | 104 | 105 | 106 | 107 | 108 | 109 | 110 | 111 | 112 | 113 | 114 | 115 | 116 | 117 | 118 | 119 | 120 | 121 | 122 | 123 | 124 | 125 | 126 | 127 | 128 | 129 | 130 | 131 | 132 | 133 | 134 | 135 | 136 | 137 | 138 | 139 | 140 | 141 | 142 | 143 | 144 | 145 | 146 | 147 | 148 | 149 | 150 | 151 | 152 | 153 | 154 | 155 | 156 | 157 | 158 | 159 | 160 | 161 | 162 | 163 | 164 | 165 | 166 | 167 | 168 | 169 | 170 | 171 | 172 | 173 | 174 | 175 | 176 | 177 | 178 | 179 | 180 | 181 | 182 | 183 | 184 | 185 | 186 | 187 | 188 | 189 | 190 | 191 | 192 | 193 | 194 | 195 | 196 | 197 | 198 | 199 | 200 | 201 | 202 | 203 | 204 | 205 | 206 | 207 | 208 | 209 | 210 | 211 | 212 | 213 | 214 | 215 | 216 | 217 | 218 | 219 | 220 | 221 | 222 | 223 | 224 | 225 | 226 | 227 | 228 | 229 | 230 | 231 | 232 | 233 | 234 | 235 | 236 | 237 | 238 | 239 | 240 | 241 | 242 | 243 | 244 | 245 | 246 | 247 | 248 | 249 | 250 | 251 | 252 | 253 | 254 | 255 | 256 | 257 | 258 | 259 | 260 | 261 | 262 | 263 | 264 | 265 | 266 | 267 | 268

mail to: pirton@mail.ru