Opinion
No. 30,070.
July 30, 1934.
Assignments of error — amendment — time for allowance — sufficiency of amendment.
Counter motion by defendant-appellant to amend his assignments of error after motion by plaintiff-respondent for dismissal, on the ground of insufficiency of errors assigned, of defendant's appeal from an order of the district court for Hennepin county, Horace D. Dickinson, Judge, denying his motion for a new trial. Motion to amend assignments denied with leave to renew motion; motion to dismiss appeal to abide result of action on appellant's renewed motion.
Daniel F. Foley, for plaintiff-respondent.
Shaw, Safford Putnam, for defendant-appellant.
This case comes before us upon a motion on the part of the respondent to dismiss the appeal on the ground that no sufficient assignments of error have been taken to the order denying the defendant's motion for a new trial. The defendant-appellant has countered with a motion for leave to amend his assignments of error by adding thereto an assignment to be numbered 3: "In denying appellant's motion for a new trial on the ground that the evidence does not sustain the findings of fact."
Ordinarily, we permit an amendment of assignments of error even as late as the oral argument of the case; but where, as in the case at bar, the defective assignments are called to the attention of the appellant by earlier motion, we will fix an earlier date within which the amendments may be allowed. However, the amendment proposed by the appellant is defective because there were six paragraphs of findings of fact by the trial court, and where there is more than one finding of fact an assignment of error that the evidence does not sustain the findings of fact is insufficient. Union C. R. Co. v. John, 49 Minn. 481, 52 N.W. 48.
In Hrdlicka v. Haberman, 140 Minn. 124, 127, 167 N.W. 363, we held that in actions tried to the court findings may be assailed upon appeal as being without support even though there was no motion for a new trial or the specific finding attacked was not attacked on a motion for a new trial. In Sheffield v. Clifford, 186 Minn. 300, 243 N.W. 129, we outlined the effect of a motion for amended findings when blended with a motion for a new trial.
We deny the motion for amended assignment, with leave to the appellant within ten days to renew his motion to amend his assignments of error as he may be further advised. The respondent's motion will abide the result of action upon appellant's renewed motion.