The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1906-02-24
JUSTICES CANNOT
Agree ON PRACTICE
Supreme Court Hands Down I'm
pOrtant Majority and
Minority Opinion.
ASSIGNMENTS OF ERROR
IN LOWER COURT BASIS
Justices Straup and McCarty
Are Against Chief JUS
tice Bartch.

The State Supreme court has handed
down an important and far-reaching ma
1ority and minority opinion upon the ques-
tion OF practice, so far as IL relates
TO assignments or specifications Of
errors. The case in which the opinion
is handed down is that OF the Smith Table
company. appellant. ". p w. Madsen, in
which tho judgment OF the lower court in
favor Of Madscn. was affirmed some
weeks ago In that opinion, however, the
question of practice was not gone into
fully and 1t therefore was deemed ad-
Nsabe 10 give the matter further con-
sidcration
The principal questions relied upon in
the case relate TO The Suillclency OF the
evidence to sustain the findings OF fact.
straup and McCarty Agree.
In this opinion. as In the first instance,
Justices Strnup and McCarty are on
one side OF the question and Chief Justice
Bartch Is on the other The question
arose through a motion OF the respondent
in the Supreme court 10 strike ou the as
signment OF errors The motion was
based upon the ground that no assign
ment or specification OF errors was hled
or served at the proper place or time and
It also appeared that no assignment or
specification OF errors was ever fled in
the court below nor was 1T presented
TO that court or settled in the bill OF eN-
ceptons although the most important
errors assigned relate TO lne lnSuuCltICS
OF tho evidence 10 sustain the findings Of
fact and the conclusions of law. The as
Signment. II further appears, was made
and filed for the iirst time I'm the Supreme
court
Majority Opinion.
In the majorlty opinion the ground is
taken that the old statute, requiring the
petition In error TO be attached TO the
transcript and filed in the supreme court
was repealed i'm 1893. and that there has
not been since then any statute providing
where OF when the petition or assignment
OF errors should be made. Mention is
then made OF the fuct that rules and 10
OF the Supreme court require the appel
liant to set forth In his abstract and
brief the particular errors upon when
ment," and, the majority opinion adds
II these shall be construed To mean the
assignment OF errors. then IT was properly
made and filed In the Supreme court. Ii
is pointed out in the same connection that
the object OF an assignment of errors Is
TO apprisc the appellate court Of the
specific questions presented for It's con-
sideration and To inform the opposite
party of the points intended To be relied
upon.
Power of Trial Court.
In settling a bill OF exceptions. the
opinion goes on. the trial court has moth
ing to do with allowing or settling an as
signmcnt OF errors nor are the assign
mcnts to be presented In the bill of eN-
ceptions FOR the consideration Of the trial
court or for the purpose that IL may re-
view and correct any error so assigned
Because of the absence OF a statute or
n rule OF court regulating IT. the maIority
opinion says further. the practice has
been TO consider the assignments II made
in either court Since the appeal was
taken In the case under consideration.
however, it is added, rule % has been
established. requiring the assignments To
be made and filed in the supreme court
within five days from the time of fling
the transcript OF the record on appeal.
The Better Practice.
1T may be said" the opinion adds lit
Is the better practice To require the as
signment to be filed below and embodied
In the bill Of exceptions to aid the trial
court and opposing counsel In determining
the amount and kind OF evidence 10 be
set forth in the bill. When the bill Is pre-
scnted showing the rulings, the objections
made and exceptions taken thereto, II
IS sufficient notice that they may here
after be assigned as error, and each party
IS afforded an opportunity 10 have all the
evidence deemed necessary TO explain
them embodied In the bill
Authority Is Doubted.
AT the same time however. IL is added
a complete transcript OF tho reporters
notes OF all the evidence and proceedings
may be and generally is rendered and
settlcd as and for the bill The authority
Of the Supreme court TO make q rule
for the District court. directing what it
shah cmbody in the bill OF exceptions, and
to place IN the dill something NOT a part
of tho record or history of the case. nor
required by the statute. may well be
doubted Further, IN an appeal from a
judgment roll without a bin of exceptions
no assignment could be made In such
manner. and hence It would be necessary
10 have one rule for such an appeal and
another for record having bill OF cx-
oeptlon.
As a result of these views. the majority
opinion holds that the motion TO strike
ou. Is properly denied. and 1t is so
Chief Justices Opinion.
Chief Justice Bartch takes the opposite
view. In his judgment the assignment
referred to is a specification of errors. al
legged 10 have been committed by the
relies for reversal. When properly pre-
Jared, Judge Bartch adds, II is in tho ma
turo Of pleading setting forth the
points 10 be determined IN the appel-
iote court, and that court in eeperaI
Will consider and determine only such
points as arc thus properly pleaded and
presented.
Chief Justice Bartch also dIsagrees
with his brethren as to the statute ana
Gays Under our statute and practice.
guch specifications of errors must be
vice rnado upon the adverse party. and.
where. here. alleged errors relate TO
the insufflcIcncy OF ths evidence to Jus
TRY tho ruling or thing complained OF.
the specifications muGt be settled in "a
bill Of exceptions.
Provisions OF Statutes.
Further the minority opinion says the
reyiscd statutes make provisions for ar
appellant to serve a draft OF a bill OF
exceptions. such draft to contain all the
exceptions taken upon which the party
relies ard then after specifying the ran
ner IN which the bill nust be settled by
the trial Judge, further provideS: "Wher.
settlcd tEc bill must be signed BY the
Judge with his certificate 70 the effect
that the same Is allowed and shall then
be fled with the clerk"
PURPOSE OF Provisions
The evident purpose OF tht9. II is added
70 to require the appellant TO present tho
specific poiuts, upon which he relies 10,
reversal, 10 ths lower court for It's con,
s,deratlOr IN tne settlement os the bin
OF exceptions, and TO appriee the adverse
party or opposing counsel OF the same SO
as 10 afford an opportunity 10 propose
eHCn ainehniaents TO the bill. before set