McCluskey v. Steele

This cause was submitted on briefs in the Supreme Court on June 17, 1920, and by that court transferred to this court on October 6, 1920; it having been ascertained that the submission in the Supreme Court was improper, as the jurisdiction of the matters involved is in this court. Acts 1911, p. 96, § 2.

This record is voluminous, and the questions presented are profusely and elaborately briefed by respective counsel. We have considered these briefs, but we feel constrained to say that there is a flagrant noncompliance by appellants' counsel of Supreme Court rule 10 (175 Ala. xviii), adopted June 23, 1913, governing the practice in the appellate courts of this state. The rule is as follows:

"Appellant's brief shall contain a concise statement of so much of the record as fully presents every error and exception relied on, referring to the pages of the transcript. * * *

"Following this statement, the brief shall contain under separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in support of them."

A strict or substantial adherence to this rule tends greatly in assisting the appellate courts, not only in reaching the correct conclusion, and in the preparation of the opinion, but also the consideration of the case in consultation; while, on the other hand, a brief prepared in violation of this rule is calculated to confuse, rather than aid, the court, and results in an unnecessary burden on the appellate courts. It would necessarily be with great reluctance that this court should feel called upon to strike a brief for a noncompliance of the rules, but that the appellate court has the authority so to do cannot be questioned.

The appeal in this case is taken from a judgment of the trial court granting a motion for a new trial. This motion contained numerous grounds; among them, that the verdict was against the overwhelming weight and preponderance of the evidence. The rule in this state governing the reviewing of the action containing this and similar grounds has been so often stated that we are content to say that under the rule we cannot affirm that the trial court was in error. Wood v. Empire Laundry Co., 14 Ala. App. 144,68 So. 584.

In an opinion prepared by the trial court, which is a part of the record, it is apparent that the question of whether that court erred or not in overruling the demurrer to the first count of the complaint as last amended received a great deal of consideration at the hands of the court; in fact, no other ground of the motion is discussed in the opinion. The order granting the motion is general, and does not specify any particular ground upon which the trial court based its action; and this court will refer that general order to any ground in the motion that would sustain the action of the trial court.

The weight of authority is to the effect that a conspiracy to procure the breach of a contract, without direct fraud, force, or coercion, is not actionable. 5 Rawle C. L. p. 1101, § 49; Sleeper v. Baker, 22 N.D. 386, 134 N.W. 716, 39 L.R.A. (N.S.) 864, Ann. Cas. 1914B, 1189; Jackson v. Morgan,49 Ind. App. 376, 94 N.E. 1021; Chambers v. Baldwin, 91 Ky. 121, 15 S.W. 57, 11 L.R.A. 545, 34 Am. St. Rep. 165; Cohen v. Hershfield, 16 Daly, 96, 9 N.Y. Supp. 512; Swain v. Johnson, 151 N.C. 93,65 S.E. 619, 28 L.R.A. (N.S.) 615; Ashley v. Dixon,48 N.Y. 430, 8 Am. Rep. 559; Boyson v. Thorn, 98 Cal. 578, 33 P. 492, 21 L.R.A. 233; Glencoe, etc., v. Hudson, etc., 138 Mo. 439,40 S.W. 93, 36 L.R.A. 804, 60 Am. St. Rep. 560.

We approve the opinion of the trial court and its ruling that the first count of the complaint as last amended does not state a substantial cause of action. The reporter will set out the first count as last amended.

Charge 6 given at the request of the plaintiffs, was erroneous, sufficient in itself to justify the action of the trial court. Minto v. Moore, 1 Ala. App. 556, 55 So. 542.

The judgment appealed from is affirmed.

Affirmed.