Opinion
No. 39939.
November 21, 1929.
APPEAL AND ERROR: Assignment of Errors — Fatal Indefiniteness. 1 A sweeping omnibus assignment of error in blanket form presents no reviewable question to the appellate court. Likewise an assignment to the effect that the court erred in giving a certain numbered instruction.
APPEAL AND ERROR: Assignment of Errors — Amendment Unallowable.
reply original
Headnote 1: 2 R.C.L. 163. Headnote 2: 2 R.C.L. 166.
Appeal and Error: 3 C.J., § 1523, p. 1374, n. 58; § 1526, p. 1378, n. 70; § 1540, p. 1391, n. 14; § 1598, p. 1434, n. 32. Municipal Corporations: 43 C.J., § 1787, p. 1003, n. 43.
Appeal from Wapello District Court. — GEORGE W. DASHIELL, Judge.
Action to recover damages for personal injury occasioned by a fall on a sidewalk, alleged to have been permitted by the city to become dangerous on account of accumulation of snow and ice thereon. Trial to the court and a jury. Verdict and judgment for the plaintiff. The defendant appeals. — Affirmed.
E.G. Moon, for appellant.
Lloyd L. Duke and A.R. Swartz, for appellee.
The appellant in its brief, under the heading "Errors Relied Upon For Reversal," states:
"The trial court erred in overruling defendant's motion for a directed verdict, which motion was submitted at the close of plaintiff's testimony and at the close of all the evidence, and in overruling defendant's motion for new trial upon the grounds stated in Paragraphs 9 and 10 of said motion for a new trial."
Grounds 9 and 10 of the motion for a new trial are as follows:
"9. Because the court erred in overruling the defendant's motion to direct a verdict filed at the close of the plaintiff's evidence, to which ruling exception was duly taken at the time."
"10. Because the court erred in overruling defendant's motion to direct a verdict in its favor filed at the close of all the evidence, to which ruling exception was duly taken by the defendant at the time."
The motion for a directed verdict contains 11 separate and distinct grounds.
It is apparent that the foregoing ground of error does not comply with the rules of this court, as we have repeatedly held that the assertion of sweeping omnibus errors in blanket form, such as the foregoing, is not sufficient, under 1. APPEAL AND the rules of this court, to present anything for ERROR: our consideration and determination. See assignment Reynolds Heitsman v. Henry, 193 Iowa 164; of errors: Fisher v. McCarty, 197 Iowa 369; Harrington v. fatal Southern Sur. Co., 206 Iowa 925; Reynolds v. indefinite- Chehak, 199 Iowa 561; In re Estate of Pauly, 174 ness. Iowa 122; Ryan Bros. v. Rate, 203 Iowa 1253; Blakely v. Cabelka, 207 Iowa 959; Miller v. Swartzlender Holman, 192 Iowa 153; Hedrick Nat. Bank v. Hawthorne, 209 Iowa ___; Bodholdt v. Townsend, 208 Iowa 1350. This proposition has been fully considered in our recent pronouncements in Hedrick Nat. Bank v. Hawthorne, supra, and Bodholdt v. Townsend, supra; and repetition of what we there said is unnecessary.
The appellant, in its reply brief, attempts to make specific the grounds relied upon for reversal. This statement in its reply brief is of no avail to the appellant. The 2. APPEAL AND errors relied upon for reversal set out in ERROR: appellant's original brief measure its full assignment right of review. See Bodholdt v. Townsend, of errors: supra; Fisher v. McCarty, supra; Floyd Newland amendment v. Serenado Mfg. Co., 196 Iowa 6; Dodge v. Grain unallowable. Shippers' Mut. Fire Ins. Co., 176 Iowa 316; State v. Thomas, 173 Iowa 408; Richardson v. City of Centerville, 137 Iowa 253.
In view of the foregoing authorities, it is apparent that the foregoing ground of error does not comply with our rules, and that the same presents nothing for our consideration and determination.
The appellant also complains as to certain instructions. In the grounds or specifications of errors, it is merely stated that the court erred in giving certain instructions, by number. It is the repeated pronouncement of this court that grounds of error in such form present no question for our determination, and that we are warranted in disregarding the same. See Jacobs v. Vanderwicken (Iowa), 218 N.W. 147 (not officially reported); In re Estate of Mott, 200 Iowa 948; Central Tr. Co. v. City of Des Moines, 204 Iowa 678; and the authorities hereinbefore cited. Instructions Nos. 8 and 9, concerning which complaint is made, are copied verbatim from Instructions Nos. 9 and 10 set out in full in Finnane v. City of Perry, 164 Iowa 171. A portion of said instruction, not excepted to in the instant case, has been held erroneous, but not prejudicial, in Allen v. City of Fort Dodge, 183 Iowa 818.
In the remaining instruction concerning which complaint is made, the court told the jury that the fact that other walks were permitted to remain in the same or similar condition as the one in question would constitute no defense. That said instruction is correct is too plain to require discussion.
For the foregoing reasons, the judgment of the trial court is hereby affirmed. — Affirmed.
ALBERT, C.J., and STEVENS, FAVILLE, De GRAFF, MORLING, KINDIG, and GRIMM, JJ., concur.