The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1880-09-30
SUPREME COURT DECISION.

Following is The decision of Asscoi-
ale Justice Boreman, deliysEsd in the
below entitled case on Saturday, Sep
tember 25Ih:
In the Supreme Court Of Utah Terri
tory. June term. 1880.
Heber Bsnkhesd, sppellan',
Union Pacific Railroad Company, re-
EpOndent.
Appeal from the Third District Court.
Boremau. justice, delivered the opinion
Of the court:
The District Court gave judgment
against the plaintiff, and he has ap-
pealed. In the court below, the appel
liant fled a statement containing the evil
denee and showing exceptions to the
rulings of the court upon questions arising
10 the course of the trial upon the intro
duction Of evidence; but beyond these ex-
ceptions there was nothing in the nature
Of assignment Of errors or grounds upon
which the appellant INTENDED to rely on
the appea'. Ths respondent objects 10
the cause being heard in this court upon
the evidence, for the reason that there is
no assignment of errors, as required by
section $50 of our Civil Practice Act
The appellant urges thst the exceptions
taken at the time to the rulings of the
court below upon the introduction of evl-
dence ara . sufficient assignment of errors
| under the statutes. In order, however,
that the assignments may be formally
made, he now presents aud asks that he
be allowed now 10 this court t. file the
same. He relies. upon the Gaze of Barrett
VS.. Tewksbury, ia is California, X. 354
We are asked TO pass upon this question
bef-re the cause be further heard.
1t is q common practice to make
variety of exceptions to the rulings OF the
court, but it is equally common for the
appellant to designate upon which OF
such exceptions he intends to rely on his
appeal. This is requisite 10 prevent the
record from being unnecessarily bur
dened with statements Of facts and de-
tails of unimporlant matters, and TO give
the opposite party timely notice OF the
specific grounds OF objection which he
will have 20 meet. The appellant has
rot in this case designated any specific
exception or alleged error upon which he
intended to rely on his appeal, nor is it
claimed that be has done so. Should
the assignment be now allowed in this
court over the objection Of the respon-
dent?
The assignment Of errsrs is the
main feature Of the statement on
appeal, authorized by the section
of the statute referred to. The
statement amounts to nothing without
it. The evidence is merely incidental to
the assignment OF errors, to explain and
show ia what the alleged errors consist.
The allowance AZ this time OF the fling OF
such assignment, is to slow now the fling
Of o statement. The statute requires that
this be done in the District Court, and
within limited time, and that . copy
be served upon the respondent, who can
within a specified time thereafter pro-
pose amendments, serving copy thereof
on the appellant, and then the statement
and amendments are to be presented to
the judge or referee who tried the case,
upon two days notice 10 the respondent,
and then the ju ige or referee shall there
upon settle the sta ement. This statute
has not been followed nor attempted to
be followed. 1t is a statute made not
only for the benefit of the parties but
also for the assistance of the court, By
and requiring the court to wade through
q mss of evidence or teatimony oral or
documentary, that may be ministerial to
the case upon the appeal. The case Of
Barrett VS. Tswksbury shows Gaze where
by the dicta Of the court, the appellant
might upon 8 Hypothetical case, be
allowed 10 file his assignment of erorrs in
the Supreme Court, bat no such allow
ance was made in that csse. The condi-
tion Of STAIRS existing in California at the
time such hypotheiica case was put, il
not the condition ex'1tinR here. In
CRlifofniE the general practice there was
TO not fle such assignment in the court
below but in the Supreme Court, and
this practice arose to a considerable
extent from indefinite use of the statute.
Since that time the California statute
has been amended. and the Supreme
Court of that state, says that since the
amendment there can be no uncertainty
IN the requirements Of the statute, and
that such assignment must be made 10
The court below as required by the
statute. Hunter We. Reed, % Cal. 478.
Gus statute is identical with the Cali
forDlS statute as amended, and not as it
was before amendment, nor does it ap-
pear that IN this territory it has been the
general practice to disregard the statute.
there q. es not therefore seem to be any
authority or any good reason for excusiug
the failure to prepare and file the state |
ment 10 the court below as required BY |
the statute, nor for allowing such ass gn-
megt to now be fled in this court. The |
therefore to file same now
will be dsnisd.
As the appellant does not desire any
hearing upon the judgment-roll, as it |
stands, the judgment Of the court below |
is affirmed with costs.