Dailey v. Standard Oil Co.

[1] The case was originally submitted and an opinion filed December 13, 1929, 228 N.W. 314. A rehearing was granted and upon the granting of such rehearing, the appellants filed very elaborate statements of error relied upon for reversal and argued the same. We have repeatedly held, under similar circumstances, that this can not be done. In Hintrager v. Hennessy, 46 Iowa 600, l. c. 604, we said:

"We are unwilling to sanction the practice that a new case can be made in a petition for a rehearing, or that matters may be insisted on therein which were not presented in the original argument and not considered in the opinion. Should we do so, causes might be presented and determined by piecemeal. * * * The object and office of a petition for a rehearing is to satisfy the court that it is reasonably certain some matter presented by counsel has been overlooked by the court, or that some mistake of fact or law has been made in the opinion."

We reannounced this doctrine in Long v. Investment Co.,135 Iowa 398, and State v. Lozier, 200 Iowa 652.

An application for a new trial must, under Section 11551, Code, 1927, "be made within five days after the verdict * * * unless for good cause the court extends the time * * *; must be by motion upon written grounds, * * *."

Under Sections 11553, 11554, and 11556, motions in arrest of judgment and for judgment notwithstanding the verdict must be filed within the time fixed for filing motions for a new trial.

[2] The appellants in their brief and argument set out "Errors Relied upon for Reversal" as follows:

"1. The court erred in overruling defendants' motion for judgment notwithstanding the verdict.

"2. The court erred in the giving to the jury of instructions Nos. 7, 8, 9, and 12, and in refusing to give to the jury the instructions 1, 2, 3, and 4 asked by the defendants.

"3. The court erred in the admission of certain evidence of the witness Elmer J. Reed over the defendants' objections, and in overruling defendants' motion to strike the testimony of the witness Elmer J. Reed from the record.

"4. The court erred in overruling defendants' motion for new trial and petition to vacate judgment."

It is insisted by the plaintiff that none of these "Errors Relied upon for Reversal" comply with Rule 30 of this court.

The first statement of error relied upon for reversal is wholly indefinite and uncertain. By referring to Section 11553, it will be noticed this motion for judgment notwithstanding the verdict must be bottomed wholly on a question of pleading. This section reads:

"Either party may file a motion for judgment in his favor notwithstanding the fact that a verdict has been returned against him, if the pleadings of the party in whose favor the verdict has been returned omit to aver some material fact or facts necessary to constitute a complete cause of action or defense, the motion clearly pointing out the omission."

In the motion filed in the instant case for judgment notwithstanding the verdict, no reference whatever is made to the pleadings, and no omission is pointed out therein; hence there is nothing to be considered. Further than this, the statement of errors relied upon for reversal is not specific as required by the rules of this court.

The second statement of error relied upon for reversal is that the court erred in giving to the jury instructions 7, 8, 9, and 12 and refusing to give instructions 1, 2, 3 and 4 asked by the defendant. Among the later cases holding that such a statement of errors is insufficient, see Roche v. Star Land Co., 176 Iowa 34, at 39; Hobbs v. Illinois Central Ry. Co., 182 Iowa 316; Powers v. Iowa Glue Co., 183 Iowa 1082; Reichenbach v. City Trust and Savings Bank, 205 Iowa 1009.

The third statement of error relied upon for reversal is equally insufficient. See In re Estate of Bagnola, 178 Iowa 757; King v. C.R.I. P. Ry. Co., 185 Iowa 1227.

The fourth statement of error is also equally insufficient. Shilling v. Sioux City Gas Co., 184 Iowa 1153; Omaha Beverage Co. v. Temp Brew Co., 185 Iowa 1189; State v. Smith, 192 Iowa 218; In re Estate of Butterbrodt, 201 Iowa 871; Blakely v. Cabelka, 203 Iowa 5; Central Trust Co. v. City of Des Moines,204 Iowa 678.

We have repeatedly announced that blanket statements of error relied upon for reversal bring nothing before the court for consideration. See Blomgren v. City of Ottumwa, 209 Iowa 9; Bodholdt v. Townsend, 208 Iowa 1350; Hedrick National Bank v. Hawthorne, 209 Iowa 1013; State v. Perkins, 208 Iowa 1394; Blakely v. Cabelka, 207 Iowa, 959; Ryan Bros. v. Rate, 203 Iowa 1253; Harrington v. Southern Surety Company, 206 Iowa 925; Reynolds Heitsman v. Henry, 193 Iowa 164; Reynolds v. Chehak,199 Iowa 561.

In Dodge v. Grain Shippers' Mutual Insurance Co., 176 Iowa 316, we held that on an original submission, the appellant must fully set out his statement of legal points or propositions, and new points or propositions, subsequently raised in reply argument, will be disregarded.

This being our rule, it logically follows that the rulings in State v. Lozier, 200 Iowa 652, and other cases there cited, are sound. In other words, the appellant not having presented anything to this court for its consideration in its original briefs and argument, and the case having been affirmed for that reason, it can not, on the granting of a rehearing, supply the omissions of the original submission. There is nothing to do in this case, therefore, but to affirm the same.

The last expression on this question will be found in Blomgren v. City of Ottumwa, 209 Iowa 9, at 10, where we said:

"The appellant, in its reply brief, attempts to make specific the grounds relied upon for reversal. This statement in its reply brief is of no avail to the appellant. The errors relied upon for reversal set out in appellant's original brief measure its full right of review." Citing authorities.

Under these well and long established pronouncements of this court, we find no proper statement of error herein to which we should give attention.

Our attention has been called to a number of cases in which we have held that statements of error relied upon for reversal were not sufficiently specific to comply with our rules, and have added that notwithstanding this "we have read the record and found no error." A reading of these cases, however, will show that they were always followed by an affirmance, and we have yet to have our attention called to any case where, after having held the statement of errors relied upon insufficient, we have reversed.

Appellants especially call our attention to Jahr v. Steffen,187 Iowa 168, but it will be noted in that case the last expression of the writer of the opinion (page 174) is:

"The only question raised in the motion for a new trial was whether the court erred in directing the jury, and this was sufficiently assigned."

There is nothing left to do in this case but to affirm the same. — Affirmed.

All Justices concur except EVANS, J., dissenting, and FAVILLE, C.J., who took no part.