Opinion
No. 43328.
June 19, 1936.
APPEAL AND ERROR: Assignment of error — fatally belated filing. An assignment of error filed after both the appellant and appellee have filed their brief and arguments will be stricken, and the action of the trial court affirmed.
Appeal from Webster District Court. — SHERWOOD A. CLOCK, Judge.
This is an appeal from an order dismissing the application of the administrator for an order authorizing him to sell real estate to pay debts of the estate. The only unpaid claim against the estate at the time the application was filed, which was over four years after the decedent's death, was a belated claim by the receiver of a failed bank. The claim had been previously allowed by the court on an ex parte showing. The estate was opened in March, 1929, and the claim was not filed until September, 1931. The six heirs owning the real estate set up by way of defense that no equitable circumstances existed justifying the late filing of the claim, or the still later petition for the sale of the realty, and set up other matters which they claim as a complete defense to the right of the administrator to sell the land at this late date. — Affirmed.
Helsell, Burnquist, Bradshaw Dolliver, for administrator, Wm. J. Carter, appellant.
Thomas Loth, for heirs of Nellie Rhodes, appellees.
At the very outset we are confronted with a matter of procedure in this court which, unfortunately for the appellant in this case, requires us to affirm the action of the lower court. The appellant's brief and argument was filed February 3, 1936, and contains no assignment of errors of any kind or character. Appellee's brief and argument was filed March 13, 1936. This case was docketed and assigned for oral argument before the second division of the court for May 12th. On the 11th day of May appellant filed an amendment to his brief and argument setting up for the first time an assignment of errors, claiming that the assignment of errors was omitted from his original brief and argument by oversight. Appellee promptly filed a motion to strike said amendment, claiming that the same came too late.
This, being a proceeding in probate, is governed by the rules of this court applicable to law actions which under Rule 30 requires an assignment of errors relied upon for reversal. Unless we are to overrule or disregard positive holdings of this court over a long period of years, the appellee's contention must be sustained. We have repeatedly held that unless the assignment of errors substantially complies with the rules of this court, the appeal presents nothing for our consideration and determination, and we have likewise held that the errors relied upon for reversal, set out in appellant's original brief, measure the full right of appellant for review in this court. Blomgren v. City of Ottumwa, 209 Iowa 9, 227 N.W. 823. And that an attempt to remedy this by way of amendment filed after appellee has prepared and filed his brief and argument is not permissible. Lorimer v. Hutchinson Ice Cream Company, 216 Iowa 384, 249 N.W. 220. See, also, Dailey v. Standard Oil Company, 213 Iowa 244, 235 N.W. 756.
Adhering to the long-established pronouncements of this court upon this question, the case must be and is affirmed. — Affirmed.