Opinion
Civil No. 4443.
Filed November 2, 1942.
1. APPEAL AND ERROR. — Under rules requiring that assignments of error must specify each ground of error and the particular ruling complained of and that any objection to trial court's rulings would be deemed waived in Supreme Court unless so assigned as error, assignments that complaint did not state facts sufficient to grant relief prayed for and that judgment was contrary to law, would not be considered. (Supreme Court Rule 12, subds. 1, 3.)
2. APPEAL AND ERROR. — Assignment of error specifying that judgment was not justified by evidence would be considered as meaning that there was not evidence sufficient to sustain the judgment. (Supreme Court Rule 12, subds. 1, 3.)
See 2 Cal. Jur. 708; 1 Cal. Jur. Ten-year Supp. 444; 3 Am. Jur. 296.
APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.
Messrs. Lewkowitz Wein, for Appellant.
Mr. George Sorenson and Mr. Richard Minne, for Appellee.
This is an appeal from a money judgment in favor of N.A. Lytle, plaintiff, and against William E. Wells, defendant. The assignments of error read as follows:
"1. That the complaint upon which the trial was had, does not state facts sufficient to grant the relief prayed for.
"2. That the judgment is contrary to law.
"3. That the judgment is not justified by the evidence."
Rule XII, subdivisions 1 and 3, of the rules of the Supreme Court reads, so far as material, as follows:
"1. All assignments of error must distinctly specify each ground of error relied upon and the particular ruling complained of. . . .
"3. Any objection to the ruling or action of the court below will be deemed waived in this Court unless it has been assigned as error in the manner above provided."
This rule has been in effect for nearly forty years, and we have repeatedly had occasion to rule on the effect of a failure to observe it. Many of the cases so ruling are cited in Thornburg v. Frye, 44 Ariz. 282, 36 P.2d 548.
[1] Upon an examination of the assignments in the present case, it is obvious that the first and second utterly fail to comply with the rule, and we, therefore, following our repeated decisions on similar questions, decline to consider them.
[2] The third, by a most liberal construction, may be assumed to mean that there is not evidence sufficient to sustain the judgment, and we, therefore, consider it.
We have carefully read the transcript of evidence. Since, on such an assignment, each case must stand on its own facts, it would be of no value as a precedent to discuss the evidence at length. It is in sharp conflict on the material questions of fact, but we think there is testimony therein which, if believed by the trial court, as it must have been, would sustain the judgment rendered.
The judgment is affirmed.
McALISTER and ROSS, JJ., concur.