Opinion
September 30, 1936.
November 23, 1936.
Appeals — Practice — Assignment of errors — Reasons — Brief — Waiver — Abandonment.
1. An appellant must not only specifically assign as error any ruling complained of but further must point out wherein the error lies and reasons therefor, or it will be deemed to have been waived. [143]
2. Where an order apparently valid on its face is assigned as error and no reasons are submitted in the brief as to why the order is erroneous, the appellate court has the right to consider the error, if any, waived. [143]
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 174, March T., 1936, from order of O. C. Jefferson Co., Jan. T., 1936, No. 26, in re petition of Dr. F. A. Lorenzo for citation directed to heirs, legatees and next of kin of H. C. Beach, deceased, to show cause why letters of administration should not be taken out on the Estate of H. C. Beach, deceased. Order affirmed.
Petition and rule to show cause why letters of administration should not be taken out on estate of decedent.
The opinion of the Supreme Court states the facts.
Order entered making rule absolute. Respondent appealed. Error assigned was order.
John W. Conrad, with him W. N. Conrad, of Conrad Conrad, for appellant.
No appearance was made, nor brief filed, for appellee.
Argued September 30, 1936.
Appellant submitted his case without any argument in his brief. The general rule is that appellant must not only specifically assign as error any rulings complained of but further must point out wherein the error lies and reasons therefor, or they will be deemed to have been waived: see Bass v. State, 58 Fla. 1, 50 So. 531; Rayburn v. Guntersville Realty Co., 228 Ala. 662, 154 So. 812; Cropsey v. Cropsey, 104 N.J. Eq. 187, 144 A. 621. In other words, counsel must point out the reason why the ruling is claimed to be erroneous. In Noble v. Noble, 198 Cal. 129, 243 P. 439, the appellants set forth ten alleged errors of law committed by the trial court but did not mention or comment on them in the brief and, on appeal, they were treated as abandoned without further discussion. In Universal Adjustment Corp. v. Midland Bank, 281 Mass. 303, 184 N.E. 152, appellant at the conclusion of his brief insisted that the court consider every exception to evidence and to the rulings of the lower court although mention of them had not been specifically covered by argument. The court held that it was not required to deal with any exceptions not argued on appeal.
Where counsel merely assigns as error an order which is apparently valid on its face and submits no reason in his brief as to why the order is erroneous, this court has the right to consider the error, if any, waived.
Order affirmed at appellant's cost.