Porter v. American Cigar Box Lumber Co. ( 1913 )

This is a motion to dismiss the appeal and to affirm the judgment for failure to comply with Rule 19, sec. 2. An examination shows that the motion is well founded. In Thompson v. R. R., 147 N.C. 413, the alleged assignments of error were such as are herein set out. In that case Hoke,J., in dismissing the appeal, said: "These rules refer to exceptions which have been properly assigned for error, in accordance with Rule 27 and Revisal, 561, and the proper observance of all of them is required for the orderly and efficient disposition of causes on appeal. These rules are not complied with by making a short excerpt from the stenographer's notes incomplete in themselves and giving no indication of their real bearing upon the question involved. . . . Just what will constitute a sufficiently specific assignment must depend upon the special circumstances of the particular case; but always the very error relied upon should be definitely and clearly presented, and the Court not compelled togo beyond the assignment itself to learn what the question is. Theassignment must be so specific that the Court is given some real aid, and a voyage of discovery through an often voluminous record not rendered necessary."

In dismissing the appeal in Lee v. Baird, 146 N.C. 361, for failure to comply with this same rule, the Court said: "These rules, published in 140 N.C. 660, have been adopted after extended and careful reflection and because they were found necessary to a proper (397) performance of the public business of the Court."

In Calvert v. Carstarphen, 133 N.C. 28, the Court said: "The rules of this Court are mandatory, not directory." In Smith v. Manufacturing Co.,151 N.C. 260, Walker, J., in dismissing the appeal for failure to comply with this rule, said: "We must insist upon a strict compliance with this rule. . . . It places before the Court in condensed form the entire case, so that we can the more readily understand the argument of counsel and consider the case more intelligently as the discussion before us progresses. We have more than once held with some degree of emphasis that this, as well as the other rules of the Court, will be enforced, reasonably, of course, but according to their plain intent and purpose."

In Davis v. Wall, 142 N.C. 453, in dismissing the appeal for failure to comply with this rule, it was said: "Ordinarily, hereafter, such motions will be allowed upon a failure to comply with the rules of this Court, without discussing the merits of the case."

In Ullery v. Guthrie, 148 N.C. 418, it is said: "This is a reasonable and just rule. . . . It is indispensable in all courts that there should be some rules of practice, else there would be hopeless disorder and confusion. It is, for the same reason, not so important what the rules are as that they shall be impartially applied to all."

As far back as Sigman v. R. R., 135 N.C. 181, the Court said emphatically that thereafter appeals would be dismissed in cases of nonobservance of the rules.

In Marable v. R. R., 142 N.C. 564, the Court said: "We again especially direct attention of the profession to those rules and to that decision (Davis v. Wall, 142 N.C. 450) as being very proper for their careful consideration when preparing cases on appeal."

In Jones v. R. R., 153 N.C. 421, the profession was again warned that the rules would be rigidly enforced, and the Court said: "Nothing could be more arbitrary than a principle or a rule which should(398) be enforced against some litigants and not as to others."

In McDowell v. Kent, 153 N.C. 556, the Court said, in affirming the judgment below for failure to comply with this rule: "Though this matter has been often called to the attention of the profession, and our determination expressed to enforce the rule, such cases as this occasionally occur. It is of the utmost importance that any rule shall beimpartially applied. It would be the greatest injustice to apply it to some cases and not in all. . . . This Court is decidedly adverse to deciding any case upon a technicality or disposing of any appeal otherwise than upon its merits. But having adopted this rule from a sense of necessity, and having put it in force only after repeated notice, and having uniformly applied it in every case since we began to do so, it is absolutely necessary that we observe it impartially in every case."

There are other decisions to the same effect, besides many cases in which the motion to dismiss has been allowed without burdening the reports with further repetition of opinions to that purport. In this case the assignments of error each simply refer to an exception by its number, without giving the purport or the text of the exception. This necessitates the Court turning back and hunting up the exceptions in the record. This the Court could have done without any assignment of errors, and, if permitted, makes an "assignment of errors" entirely useless and deprives the Court of the benefit intended to be derived from such assignment. The Court has so often reiterated the reason for the rule and its intention to enforce it that it is to be trusted that no other case of such disregard of the rules shall arise, which shall compel us to dismiss an appeal, or affirm the judgment below, for failure to comply with this plain requirement of the rules.

Motion allowed and motion to reinstate denied.

Cited: Register v. Power Co., 165 N.C. 235; Wynn v. Grant, 166 N.C. 55.

(399)