LONG, C. J.: This cause is here by writ of error under section 2194 of the Compiled Laws. Praecipe for writ was filed August 25, and it issued September 30, A. D. 1885. A transcript of the proceedings in the court below was filed with the clerk of this court, and the cause docketed December 23, 1885. The Supreme Court, at its last term, convened on the fourth day of January, A. D. 1886, and on the second day of that term the defendant in error appeared, and on the same day leave was asked by the plaintiff for time in which to file brief, and it was given. On the eighth day of January, within the time so extended, plaintiff filed his brief. To that date there was no assignment of error, and four days of the term had expired. The printed brief is in the usual form. Its title page contains the name of the court and the term wherein the cause is pending, and the words "Brief of Plaintiff in Error," with the signature of the solicitor who appeared for him. The brief contains subdivisions printed under prominent headlines as follows: "Statement of the Cause," "Assignment of Errors," "Points and Authorities." Following the first subdivision is a narration of the proceedings in the court below as shown by the records. Under the words. "Assignment of Errors" is a statement that the court below erred in six particulars, which are named, and then follow the points and authorities relied upon, and the signature of the plaintiff's solicitor as such.

It is not contended by plaintiff that the cause was not returnable at the January term, A. D. 1886, but he claims that his brief is, in legal effect, an assignment of errors; and, although not filed until the fourth day of that term, the court should not for that reason disregard it. On the other hand, the defendant moves to dismiss the writ for the alleged reason that plaintiff did not assign error on or before the first day of the January term, A. D. 1886; and the question for the court now to determine is whether or not this motion shall be sustained.

It is clear that error was not assigned "on or before the first day of the term at which the cause is returnable." There is no claim or pretense of assignment within that time. Unless the contents of the brief can be regarded as an assignment of error, there is none at this time.

Can the brief be treated as such an assignment as the law requires? Bouvier defines a brief to be "an abridged statement of the party's case," "a summary of the points or questions in issue."

"Part of the opinion is omitted. A motion to reconsider was overruled Territory v. Ashenfelter, 4 N. Mex. 93, 12 Pac. 879.

"This statement should be perspicuous and concise." In general legal usage, a brief is in no sense a pleading. It contains a statement of the facts shown by the record, and the points, authorities, and arguments relied upon to sustain the contention presented for consideration. It is in the nature of an argument.

60

What is an assignment of error? "In practice, the statement of the case of the plaintiff, setting forth the errors complained of. It corresponds with the declaration in ordinary actions. All the errors of which the plaintiff complains should be set forth and assigned in distinct terms, so that the defendants may plead to them." Bouv. 197. "An assignment in error is in the nature of a declaration, and is either of errors in fact, or errors of law." 2 Tidd Pr. 1168. "To an assignment of errors the defendant may plead or demur." 2 Tidd Pr. 1173. "Issue being joined in error, the proceedings are entered of record." 2 Tidd Pr. 1175, 1176. "In the house of lords, when the defendant hath joined in error, the cause is set down to be heard in turn."

The author of Powell on Appellate Proceedings, after discussing the manner in which cases may be carried into the appellate court, proceeds: "The next matter in the course of procedure is the pleadings of the parties preparatory to their coming to a hearing. These pleadings consist, on the part of the plaintiff, of his assignment of those errors of which he complains, and, on the part of the defendant, his pleas or answers thereto." "Assignment of error is as indispensable in these proceedings as a declaration and cause of action in the original cause." Powell, App. Proc. 277. To the errors so assigned the defendant must plead or demur within the time allowed by the rules of the court. Powell, App. Proc. 280.

In Hinkle v. Shelley, 100 Ind. 89, it is held: "In this court the assignment of error is the complaint of the appellants, and, like a complaint in the trial courts, it must be good as to all who join therein, or it will be good as to none." See also Robbins v. Magee, 96 Ind. 176, to the same point.

"An assignment of error is indispensable. It is a pleading upon which an issue is to be made by demurrer, joinder or plea." Wells v. Martin, 1 Ohio St. 388.

Authorities to the same effect could be multiplied. It is apparent that an assignment of error is in the nature of a pleading, and, while it might properly be copied into the brief as a part of the statement of the cause, it should be made in some more formal way. It may be much doubted whether it is good or permissible practice to omit a formal assignment, relying on the recitals of the brief to supply the omission.61

Accord: Williston v. Fisher, 28 Ill. 43 (1862); Kinnon v. Louisville & N. R. Co., 187 Ala. 480, 65 So. 397 (1914); Live Stock I. Assn. v. Edgar 56 Ind. App. 489, 105 N. E. 641 (1914).

The brief or paper book is no part of the record, but a convenient mode of presenting the case for the consideration of the court. Errors assigned in the brief only will not be considered. Armstrong's Appeal, 68 Pa. St. 409 (1871) Witherspoon v. Crawford (Tex. Civ. App.), 153 S. W. 633 (1912). And generally the assignments of error must be incorporated in the record. Gibbs

It is not necessary to decide whether the plaintiff's brief constituted an assignment of errors, as that was not filed until the fifth day of the term. It is apparent, however, from the authorities cited, that the assignment of errors is in the nature of a pleading. It is the foundation of the plaintiff's cause in this court, and without it he can have no standing here. To this assignment the court must look for the questions to be determined. Upon it the issue is made. In this cause there is no record of any such pleading. There is no application to the court, showing an excuse for omitting to assign errors at an earlier day, for leave to now assign them.

It is, however, contended by plaintiff that the recital in the brief is at least evidence that an effort was made in good faith to comply with the statute, and therefore that good cause is shown for a failure to make a strict compliance therewith. If the defendant's motion were to dismiss because no assignment of error was made on the fifth day of the term, the argument might have some force. It is not, however, perceived how an effort to assign errors on the fifth day of the term can constitute any excuse for failure to do so on the first day. Ten days passed between the date when the transcript was filed and the commencement of the term, and no reason whatever is given for failure, within this period, to make the necessary assignment. In addition, four more days passed, and no leave was asked for time within which to assign errors, nor was any cause shown why they were not assigned before, nor cause given for delay. The interests of the bar and of litigants will be best subserved by holding a reasonably strict rule; otherwise, a lax, irregular practice will prevail, tending to confusion and delay. The requirements of the statutes are in such clear terms as to preclude misapprehension. The authorities define beyond doubt the character and office of an assignment of error. Under such conditions, the failure to comply with a clear and obvious requirement can not constitute such an excuse as to invoke the discretion of the court to relax the rule of the statutes. Discretion can not, or at least should not, be exercised so as to create delay, without facts upon which to predicate the excuse of discretion.

The motion of the defendant is sustained, the writ of error is dismissed, and the costs occasioned thereby taxed against the plaintiff.62

Brinker and Henderson, JJ., concur.

v. Blackwell, 40 Ill. 51 (1867); Deputy v. Hill, 85 Ind. 75 (1882); Cameron v. Roemele, 59 Tex. 238 (1883); Moore v. Hammons, 119 Ind. 510, 21 N. E. IIII (1889); Schmitz v. Heger, 5 N. Dak. 165, 64 N. W. 943 (1895); Martin v. Terry, 6 N. Mex. 491, 30 Pac. 951 (1892). In some jurisdictions a statement of the errors in the brief is sufficient. McReavy v. Eshleman, 4 Wash. 757, 31 Pac. 35 (1892); Haugh v. Tacoma, 12 Wash. 386, 41 Pac. 173 (1895); Donnell M. Co. v. Hart, 40 Mo. App. 512 (1890); Davis v. Barada-Ghio Real Estate Co., 163 Mo. App. 328, 143 S. W. 1108 (1911), semble.

The general rule is that questions not presented by the assignments of error will not be considered. Prescott v. Tarbell, 1 Mass. 204 (1804); Pembroke v. Abington, 2 Mass. 142 (1806); Moody v. Vreeland, 7 Wend. (N. Y.) 55 (1831); Tucker v. Ellis, 1 Ark. 273 (1839); Adams v. Munson, 3 How. (Miss.) 77 (1838); Martin v. Russell, 4 Ill. (3 Scam.) 342 (1841);

55-CIV. PROC.

CAYUGA BUILDING & LOAN ASSN. v. MACMULLEN

SUPERIOR COURT OF PENNSYLVANIA, 1911

46 Pa. Super. Ct. 94

RICE, P. J.: The single assignment of error is that the court erred in dismissing the appellant's exceptions to the auditor's findings of fact and conclusions of law. Nineteen exceptions were filed by the appellant, some to findings of fact, others to conclusions of law, and others to the refusal of certain findings and conclusions requested by him. It is contended in the appellee's paper book that the assignment should be disregarded because it is in violation of rule xiv of this court, which provides as follows: "Each error relied on must be assigned particularly, and by itself. If any assignment embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged." Notwithstanding this objection was thus brought to the notice of the appellant, no motion was made to remove it by amendment. The objection is substantial and not merely technical. The rule is an important one and has been enforced in numerous instances by this court, and a similar rule has been enforced many times by the Supreme Court. A Wells v. Martin, 1 Ohio St. 386 (1853); Hollingsworth v. State, 8 Ind. 257 (1856); Smith v. Williams, 36 Miss. 545 (1858); Ives v. Finch, 28 Conn. 112 (1859); Hutton v. Reed, 25 Cal. 478 (1864); Burnham v. Van Gelder, 32 Mich. 490 (1875); State v. Lewis, 39 N. J. L. 501 (1877); Weissman v. Russell, 10 Ore. 73 (1882); Williams v. Riley, 88 Ind. 290 (1882); Ditch v. Sennott, 116 Ill. 288, 5 N. E. 395 (1886); Wood v. Whitton, 66 Iowa 295, 19 N. W. 907 (1885); Freeman v. Rhodes, 36 Minn. 297, 30 N. W. 891 (1886); McNeill v. Kyle, 86 Ala. 338, 5 So. 461 (1888); Lang v. Max, 50 Ill. App. 465 (1893); Speers v. Knarr, 4 Pa. Super. Ct. 80 (1897); Grimm v. Washburn, 100 Wis. 229, 79 N. W. 984 (1898); Watson v. Le Grand Rink Co., 177 Ill. 203, 52 N. E. 317 (1898); Collins v. Carr, III Ga. 867, 36 S. E. 959 (1900); Commonwealth v. Owen, 32 Pa. Super. Ct. 420 (1907); Axel v. Kraemer, 75 N. J. L. 688, 70 Atl. 367 (1908); Howard v. Swissvale Bor., 216 Pa. 388, 65 Atl. 814 (1907); Jones v. Weir, 217 Pa. 321, 66 Atl. 550 (1907); Harper Machinery Co. v. Ryan Unmack Co., 85 Conn. 359, 82 Atl. 1027 (1912); Wood v. Wilbert, 226 U. S. 384, 57 L. ed. 264 (1912); Benz v. Central R. R. of N. J., 82 N. J. L. 197, 82 Atl. 431 (1912); Prosser v. Mauley, 122 Minn. 448, 142 N. W. 876 (1913); Burpee v. Burpee, 109 Maine 379, 84 Atl. 648 (1912); Nelson v. Timber Co., 66 Ore. 570, 133 Pac. 1167 (1913); Cass v. Duncan, 260 Ill. 228, 103 N. E. 280 (1913); Malin v. James, 244 Pa. 336, 90 Atl. 714 (1914). The appellate court may, nevertheless, notice plain errors apparent on the face of the record, although not assigned. Castledine v. Mundy, 4 B. & Ad. 90 (1832); Crandall v. State, 10 Conn. 339 (1834); Gittings v. Baker, 2 Ohio St. 21 (1853); Arthurs v. Smathers, 38 Pa. St. 40 (1860); Louisiana v. Balize, 38 La. Ann. 542 (1886); Richardson v. Knox, 14 Tex. Civ. App. 402, 37 S. W. 189 (1896); Newell v. West, 149 Mass. 520, 21 N. E. 954 (1889); Huntsman v. Linville River Lumber Co., 122 N. Car. 583, 28 S. E. 838 (1898); United States v. Pena, 175 U. S. 500, 44 L. ed. 251 (1899); The Myrtie M. Ross, 160 Fed. 19 (1908); Canole v. Allen, 222 Pa. 156, 70 Atl. 1053 (1908); White v. United States, 202 Fed. 501 (1913). Compare McGoldrick v. Slevin, 43 Ind. 522 (1873); Hughes v. Decker, 38 Maine 153 (1854); Lane v. Taylor, 40 Ind. 495 (1872).

WALKER V. WATERBURY

867

careful examination of the auditor's report and the evidence adduced before him leads us to the conclusion that no substantial wrong to the appellant will result if we enforce it in the present case, as we are dictinctly asked to do by appellee's counsel. Appeal quashed.63

WALKER v. WATERBURY

SUPREME COURT OF ERRORS OF CONNECTICUT, 1908

81 Conn. 13

Action against the city of Waterbury and the Hellmann Brewing Company for the diversion by the city of a water-course, and by the company of another water-course, into a city sewer, whereby the plaintiff's cellar was flooded, brought to and tried by the Superior Court in New Haven County, Case, J., who gave judgment for the defendants.64

BALDWIN, C. J.: The reasons of appeal read as follows: 1. The court erred in rendering judgment for both defendants upon the pleadings and facts found. 2. The court erred in rendering judgment for defendant, the city of Waterbury, upon the pleadings and facts found. 3. The court erred in rendering judgment for defend

Accord: Reimer v. Stuber, 20 Pa. St. 458, 59 Am. Dec. 744_(1853); Good Intent Co. v. Hartzell, 22 Pa. St. 277 (1853); Chicago R. I. R. Co. v. Moffit, 75 Ill. 524 (1874); Union Central Life Ins. Co. v. Chowing, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504 (1894); Saunders v. Montgomery, 143 Ind. 185, 41 N. E. 453 (1895); Norwalk v. Ireland, 68 Conn. 1, 35 Atl. 804 (1896); United States v. Indian Gove Drainage District, 85 Fed. 928 (1898); Chandler v. Pomeroy, 96 Fed. 156 (1899); Hammond v. Vetsburg, 56 Fla. 369, 48 So. 419 (1908); Ayers v. Hobbs, 41 Ind. App. 576, 84 N. E. 554 (1907); Decker v. Mann, 80 Conn. 86, 66 Atl. 884 (1907); The Myrtie M. Ross, 160 Fed. 19 (1908); Haley v. American A. C. Co., 224 Pa. 316, 73 Atl. 557 (1909); Catlin v. Northern Coal & Iron Co., 225 Pa. 262, 74 Atl. 56 (1909); Southern Hardware Co. v. Standard E. Co., 165 Ala. 582, 51 So. 789 (1910); McMillan v. Warren, 59 Fla. 578, 52 So. 825 (1910); Williamson v. Powell (Tex. Civ. App.), 140 S. W. 359 (1911); Mulvey Mfg. Co. v. McKinney, 161 Ill. App. 514 (1911); Merritt v. Poli, 236 Pa. 170, 84 Atl. 683 (1912); West-Homestead v. Erbeck, 239 Pa. 192, 86 Atl. 773 (1913). Compare Central Trust Co. v. Continental Trust Co. of City of New York, 86 Fed. 517 (1898).

At common law errors of fact and law can not be assigned together. Jeffry v. Wood, 1 Str. 463 (1720); Fitch v. Lothrop, 2 Root (Conn.) 524 (1797); Brents v. Barnett, 3 Bibb (Ky.) 251 (1813); Freeborn v. Denman, 7 N. J. L. 190 (1824); Moody v. Vreeland, 7 Wend. (N. Y.) 55 (1831); McMurray v. Erie, 59 Pa. St. 223 (1868). But this is permitted by statute in Maine. Starbird v. Eaton, 42 Maine 569 (1856), and by the practice of the courts in Massachusetts. Eliot v. McCormick, 141 Mass. 194, 6 N. E. 375 (1886); Rothschild v. Knight, 176 Mass. 48, 57 N. E. 337 (1900).

Errors in fact could not be assigned in the Exchequer Chamber and House of Lords. Archbold's Practice, 350; Castledine v. Mundy, 4 B. & Ad. 90, 97 (1832). And this practice has been followed in some jurisdictions. Karnuff v. Kelch, 71 N. J. L. 558, 60 Atl. 364 (1904); Watson v. Mercer, 17 Serg. & R. (Pa.) 343 (1828); McMurray v. Erie, 59 Pa. St. 223 (1868). "Part of the opinion of the court is omitted.