Cattle Co. v. Connell , 43 Wyo. 135 ( 1931 )

ON PETITION FOR REHEARING An order has been entered denying the petition for rehearing in this case. We have given careful consideration to the reasons assigned for granting a rehearing, but we are unable to see that it would be of service herein, convinced as we are that the views heretofore expressed concerning the case correctly determined the law thereof upon the record before us.

It is urged that this court rendered its decision upon points neither assigned nor argued as error by appellant, contrary to the rule applied in many of our previous decisions. Automobile Insurance Co. v. Lloyd, 40 Wyo. 44, 273 P. 681, and cases cited. But we find in the record assignments of error challenging the sufficiency of the judgment under review as contrary to law and as not sustained by the evidence in the case. Those assignments are discussed in the brief of counsel for appellant, and while some of the reasons advanced in such discussion in support of them were not deemed by us of weight, still our attention was directly called to the claims of error therein set forth and required their consideration. It would seem strange that this court should be confined in examining and disposing of them solely to the argument and reasons put forward by appellant. Such a view might easily be productive of incorrect and unjust conclusions here. As said by the Kansas City Court of Appeals, in Schaff v. Nelson, 285 S.W. (Mo.App.) 1036, in discussing an instruction which it held was erroneous and required a reversal of the judgment below:

"While the instruction is challenged, it is not attacked on the ground upon which we have declared it faulty, but the Supreme Court, in Stid v. Rd., 236 Mo. 382, 398, 139 S.W. 172, 176, said:

"`The impropriety of instruction numbered 1 given for the plaintiff is urged in the briefs. Defendant says that such instruction is erroneous, and assigns some reasons therefor. That it is erroneous we have no doubt, but as to the reasons assigned in the briefs, all of them may not be tenable. But be this as it may this instruction is properly challenged in the record, and the court may seek its own reasons for condemning it, if it be one which should be condemned. The reasons assigned here may be bad, but if there has been an exception to the action of the trial court in giving the instruction, such exception goes to the whole matter and the instruction may be condemned here for any reason which is apparent to this court.'"

One of the principal grounds upon which this court predicated its reversal of the judgment below was because of the application by the trial court to the proofs of an incorrect measure of damages. As to what should be the true measure of damages was argued in respondent's brief and our consideration of the question invoked thereby.

Further, the rule that errors assigned but not discussed in the brief of appellant are deemed abandoned, is itself not inflexible when those errors are extremely serious in character and appear unmistakably and clearly upon the face of the record in the course of the reviewing court's investigation of it. That this is so is repeatedly evidenced by the decisions of other appellate courts possessing a rule of practice similar to our own and to which reference has above been made.

In Philbrook v. Randall, 195 Cal. 95, 231 P. 739, it was said concerning a rule of this character:

"The appellate court cannot be expected to prosecute an independent inquiry for errors upon which the appellant may possibly be relying. It will notice only those assignments pointed out in the brief, and all others are deemed to have been waived or abandoned. However, this rule is subject to limitation, and the court is at liberty to decide a case upon any points that its proper decision may require, whether taken by counsel or not. Hibernia Savings Loan Society v. Farnham, 153 Cal. 578, 96 P. 9, 126 Am. St. Rep. 129, 2 Cal. Jur. 729."

In Lewis v. Lewis, 166 N.W. (Ia.) 107, the rule and its limitations were quite fully considered, the court saying:

"We are well aware of the rule by which it is usually held that a failure to raise a point in argument is deemed to be a waiver, but this ought not to have absolutely universal application. Otherwise the parties, by collusion, or by oversight, or carelessness, may lead the court to commit itself to some indefensible doctrine. And it may well happen, and we think it does in the instant case, that the court, in defense of sound legal principles, may consider fundamental propositions which have been overlooked or omitted by counsel. A case in point is Big Creek Stone Co. v. Seward, 144 Ind. 205, 43 N.E. 5, where it was claimed by counsel that a point in regard to the sufficiency of the pleadings was waived because not argued, and the court said:

"`It may be inquired, therefore, should the court be controlled by a rule which would estop counsel and parties to the extent that it should hold sufficient a state of facts which plainly disclosed that no cause of action existed? Most certainly not. While we are not obliged to search for errors not made manifest by the record as the appellant brings it to us, we are not so restricted by that rule that we are required to hold a pleading sufficient when it is clearly insufficient, and when to do so would create a precedent well calculated to mislead the profession and lend confusion to well-settled principles of pleading and practice. When an error is presented by the record, the case is decided upon the record, and not upon the argument of counsel; but, when a question is not argued and does not occur to the court in its investigations of the record, a rehearing will not be granted to permit a discussion of such question. * * * In this case the sufficiency of the complaint was duly presented, and it was palpably bad. To have held it otherwise would have been a perversion of justice. If the court were limited to the arguments and reasoning of counsel in its decisions of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court.'"

In King Solomon Tunnel Development Co. v. Mary Verna Mining Co., 22 Colo. App. 528, 127 P. 129, the same subject was treated in the following language:

"Appellee also invokes the well-established general rule that appellate courts will not consider errors assigned, but not discussed in the printed briefs or on oral argument. Notwithstanding these general rules, we do not think they are at all times and under all circumstances inflexible. The appellate courts may in their discretion, and sometimes do, disregard the same, in order to prevent a miscarriage of justice. Allen v. Tritch, 5 Colo. 222; Groth v. Kersting, 23 Colo. 213,47 P. 393. We think the substantial rights of litigants are of greater weight than the inadvertence or omissions of their attorneys. We are satisfied that the record here justifies the court in considering the same in formulating its opinion, although the rule may have been disregarded by appellant. We will concede that appellant failed, both in its printed brief and on oral argument, to discuss the eighth assignment of error next thereinafter mentioned."

An extreme case, involving a very plain transgression of the rule, is that of Samuell v. Moore Mercantile Co., 62 Mont. 232,204 P. 376, and yet the court said:

"Counsel for appellant have disregarded the rules of this court in the most flagrant manner. Neither of the two so-called assignments of error presents any question for review (Rogness v. Northern Pac. Ry. Co., 59 Mont. 373, 196 P. 989), and their brief is practically devoid of argument and does not contain the citation of a single authority in support of their position. This court ought not to be called upon to do the work which counsel are employed to do, and with perfect propriety we might affirm the judgment and order without reference to the merits, and justify our decision upon reason and numerous decisions of this court and other courts of last resort; but it is apparent to us that plaintiff has suffered grievous injury in the destruction of his crops, and he should not be penalized further for failure of his counsel to discharge their duty. We therefore assume the burden of original investigation to determine the character and extent of his rights and the propriety of the remedy which he has invoked."

And the Court of Civil Appeals of Texas, in a comparatively recent case, Rogers v. Day, 34 S.W. (2d Series) 310, remarks concerning its procedure touching the rule in question:

"The view we have of the merits of this appeal is perhaps not presented by the assignments of error and propositions submitted in appellant's brief, but the erroneous nature of the judgment rendered is apparent upon inspection of the pleadings and the judgment. The error is therefore fundamental and calls for reversal, regardless of any possible deficiency of proper presentation in the brief."

See also Cook v. Moulton, et al., 64 Ill. App. 429; Lewis v. City and County of San Francisco, 2 Cal. App. 112, 82 P. 1106; State ex rel. Burg v. City of Albuquerque, 31 N. Mex. 576,249 P. 242; Purcell v. Hoffman House, et al., 89 N.Y.S. 975.

In the light of the foregoing authorities, we are not inclined to believe that we have passed beyond judicial precedents in deciding this case as set forth in the opinion previously filed herein, or in declining to grant the petition for a rehearing.

Rehearing denied.

KIMBALL, C.J., and BLUME, J., concur.