{
  "id": 3622923,
  "name": "Lamy v. Lamy",
  "name_abbreviation": "Lamy v. Lamy",
  "decision_date": "1887-01-08",
  "docket_number": "",
  "first_page": "43",
  "last_page": "45",
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      "cite": "4 N.M. 43"
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  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
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    {
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      "reporter": "Ark.",
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        8728628
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      "cite": "1 Ohio St. 388",
      "category": "reporters:state",
      "reporter": "Ohio St.",
      "opinion_index": 0
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    {
      "cite": "96 Ind. 176",
      "category": "reporters:state",
      "reporter": "Ind.",
      "opinion_index": 0
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    {
      "cite": "100 Ind. 89",
      "category": "reporters:state",
      "reporter": "Ind.",
      "opinion_index": 0
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  "last_updated": "2023-07-14T21:14:40.935300+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Brinker and Henderson, JJ., concur."
    ],
    "parties": [
      "Lamy v. Lamy."
    ],
    "opinions": [
      {
        "text": "Long, C. J.\nThis cause is here by writ of error under section 2194 of the Compiled Laws. Prceeipe 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, by Catron, Thornton & Clancy, appeared, and on the same day leave was asked by 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 \u201c Brief of Plaintiff in Error, \u201d with the signature of the solicitor who appeared for him. The brief contains subdivisions printed under prominent head-lines as follows: \u201cStatement of the Cause,\u201d \u201cAssignment of Errors,\u201d \u201cPoints and Authorities.\u201d Following the first subdivision is a narration of the proceedings in the court below as shown by the record. Under the words \u201cAssignment of Errors\u201d is a statement that the court erred below in six particulars, which are named, and then follow the points and authorities relied upon, and the signature of the plaintiff\u2019s solicitor as such.\nIt 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.\nIt is clear that error was not assigned \u201con or before the first day of the' term at which the cause is returnable.\u201d 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.\nCan the brief be treated as such an assignment as the law requires? Bouvier defines a brief to be \u201can abridged statement of the party\u2019s case;\u201d \"asummary of the points or questions in issue;\u201d \u201cthis statement should be perspicuous and concise.\u201d 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.\nWhat is an assignment of error? \u201cIn practice, the statement of the case of the plaintiff, setting forth the errors complained of. It corresponds with the declaration in an ordinary action. 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.\u201d Bouv. 197. \u201cAn assignment in error is in the nature of a declaration, and is either of errors in fact or errors of law.\u201d 2 Tidd, Pr. 1168. \u201cTo an assignment of errors the defendant may plead or demur.\u201d Id. 1173. \u201cIssue being joined in error, the proceedings are entered of record. \u201d Id. 1175,1176. \u201cIn the house of lords, when the defendant hath joined in error, the cause is set down to be heard in turn.\u201d\nThe author of Powell on Appellate Proceedings, after discussing the manner in which causes may be carried into the appellate court, proceeds: \u201cThe 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 answer thereto.\u201d \u201cAssignment of error is as indispensable in these proceedings as a declaration and cause of action in the original cause.\u201d 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. Id. 280.\nIn Hinkle v. Shelley, 100 Ind. 89, it is held: \u201cIn 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.\u201d See, also, Robbins v. Magee, 96 Ind. 176, to the same point.\n\u201cAn assignment of error is indispensable. It is a pleading upon which an issue is to be made by demurrer, joinder, or plea.\u201d Wells v. Martin, 1 Ohio St. 388.\nAuthorities 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.\nAdams v. Munson, 3 How. (Miss.) 77, is in point on the motion here. In that case a rule of court required error to be assigned by a particular time, and because of an omission to do so the cause in which the question arose, and 18 others involving the same point, were dismissed, on motion in the appellate court, with the observation: \u201cError must be assigned within the time prescribed by the rule, or the case will be dismissed on motion.\u201d\nTo the same effect is Tucker v. Ellis, 1 Ark. 273. Section 11 of the statute of that state is as follows: \u201cIn appeals and writs of error the appellant and plaintiff in error shall assign errors on or before the third day of the term to which such appeal or writ of error is returnable, and, in default of such assignment of errors, the appeal or writ of error may be dismissed, or the judgment affirmed, unless good cause for such failure be shown.\u201d On the foregoing statute, in the supreme court of Arkansas, the cause was affirmed by reason of appellant\u2019s failure to assign errors in time.\nThe clause of section 2189, Compiled Laws, which controls the practice here, is identical with the statute of Arkansas on the same subject, and was adopted after the foregoing decision. It is safe to follow the courts of Arkansas and Mississippi upon a rule identical in terms with our own.\nIt is not necessary to decide whether the plaintiff\u2019s brief constituted also 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\u2019s 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.\nIt 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 the failure to make a strict complianee therewith. If the defendant\u2019s 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 failing 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 had not been assigned before, nor cause given for delay. The interest 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 cannot constitute such an excuse as to invoke the discretion of the court to relax the rule of the statute. Discretion cannot, or at least should not, be exercised so as to create delay, without facts upon which to predicate the exercise of discretion.\nThe motion of the defendant is sustained, the writ of error is dismissed, and the costs occasioned thereby taxed against the plaintiff.\nBrinker and Henderson, JJ., concur.",
        "type": "majority",
        "author": "Long, C. J."
      }
    ],
    "attorneys": [],
    "corrections": "",
    "head_matter": "Lamy v. Lamy.\n(Supreme Court of New Mexico.\nJanuary 8, 1887.)\nAppellate Feactice \u2014 Assignment oe Ekkoks \u2014 Failure to File in Time.\nA brief in the usual form, but which was not filed until the fifth day of the term, contained, under the head \u201cAssignment of Errors, \u201d a statement that the trial court erred in certain particulars set forth. Meld that, even if it can be regarded as an assignment of errors at all, which is doubtful, it was not filed in time to comply with Comp. Laws N. M. \u00a7 3189, providing that error must be assigned \u201con or before the first day of the term to which the cause is returnable. \u201d\nError to district court, Santa Ee county."
  },
  "file_name": "0043-01",
  "first_page_order": 41,
  "last_page_order": 43
}