Paulson v. Higgins , 43 Wash. 2d 81 ( 1953 )

Grady, C. J.

(dissenting) — I do not think we should adopt such a stringent rule as is suggested in the majority opinion and say that in all cases failure to comply with Rule on Appeal 43, 34A Wn. (2d) (Sup.) 3, cannot be corrected after the filing of respondent’s brief. Much should depend in a particular case upon the reason why the rule was not complied with, whether the granting of a request to amend an appellant’s brief would work any hardship upon respondent which could, not be met by the imposition of reasonable terms, and whether the ordinary conduct of the business of the court would be prejudiced. There may be other factors to consider in a particular case.

We must not overlook the fact that many members of the bar have not yet adjusted themselves to the changes made in our rules. This is apparent from the large number of cases we have considered in which parties have sought either to terminate an appeal or materially limit consideration of the case by the court because of procedural defects. It is encouraging to note, however, that the number of such instances is on the decrease.

It is a serious matter when a litigant may lose his substantial rights by the mere oversight of his attorney relating to a nonjurisdictional step in the course of taking the procedure in perfecting an appeal, and we should therefore exercise our discretion with great care and caution. We should bear in mind that Rule 43 was promulgated to a great extent to serve our convenience, when by rule we required findings of fact to be made by the trial court in all cases tried without a jury and ceased to try de novo cases on appeal. To avoid the necessity of reading all of the lengthy record to find out what an appellant is complaining about with reference to the findings of fact, we require that he make this known by appropriate assignments of error in his brief. If he does not do so, we accept the findings as the facts of the case. A compliance with the rule enables a respondent to know what he has to meet and to prepare his brief accordingly.

When Hill v. Tacoma, 40 Wn. (2d) 718, 246 P. (2d) 458, came before the court, there had been many cases where counsel had not observed our rules, and we found it necessary to speak in plain language and insist on compliance with them. However, in those cases the parties did not seek to amend with reasonable terms being imposed, but tried either to comply with the rule in an irregular and ineffectual way, particularly so far as respondent was concerned, or to seek our indulgence by waiving the rule.

In this case, when attention was called to the error, prompt request was made to amend.

I feel that sufficient reasons have been given by appellants why their application should be granted. If it is made to appear that respondent will be obliged to rewrite his brief, or has or will incur any special expense, reasonable terms should be imposed.