I am constrained to dissent from the majority opinion for reasons hereinafter indicated. The effect of the opinion is to dismiss the appeal for want of observance of Rule 30. Our statute, in letter and in spirit, forbids the application of such a rule to the defeat of an appeal.
Prior to the enactment of Chapter 126 of the 30th Gen. Assem., "The Assignment of Errors" was a statutory requirement and had been such for many years. Beginning with the Revision of 1860 it appeared in the successive Codes, and as Section 4136 in the Code of 1897. By the Act of the 30th Gen. Assem., Section 4136 was expressly repealed, and in lieu thereof the following was enacted, and now appears as Section 12869 of the 1927 Code:
"No assignment of errors shall be required in any case at law or in equity docketed in the Supreme Court."
The new legislation resulted undoubtedly from the belief, whether justified or not, that the statutory requirement as construed by us had become unduly burdensome upon litigants and upon their counsel. Notwithstanding the later enactment of the Legislature, the requirement was embodied in our Rule 30 in general terms. Whether the statute was an infringement upon the constitutional powers of this court is a question which has never been raised. We have had no desire to press an issue on *Page 249 so unimportant a question between the judicial and legislative departments of the state. The inclusion of this requirement in our rules, as a directory provision, and as an indication of the proper method of a helpful argument, could not be objectionable. Nor could it be deemed a challenge to the validity of the legislation. But when we make the breach of this rule a sufficient cause for the dismissal of an appeal, our attitude does thereby become hostile to the statute. If there be any one of our rules, more than another, which has tripped learned lawyers, and which has eluded their mental grasp, it is this one. There is no hard and fast method which can be laid down as a compliance with the rule in all cases. It does contemplate a separate part of the argument which shall carry a caption; and it does contemplate that the very errors to be argued be specifically and succinctly set forth under such caption. This involves the incorporation into the assignment of error of that part of the record upon which the error is predicated. If predicated upon an instruction, then the instruction or the material part thereof must be set forth and the error therein pointed out. The present case serves as a good illustration of the duplication or repetition necessarily involved in full compliance with the rule. I concede that the purported errors set forth under the proper caption are too general to be of any aid to this court. Proceeding, however, into the argument itself, that does set forth specifically and methodically the very errors which are complained of. For instance, division II of the argument deals with errors in the instructions. It is subdivided into paragraphs A, B, C, and D. Paragraph A sets forth instruction No. 7 and points out the specific portion thereof to which complaint is directed. This is followed by argument in support of the complaint. Likewise paragraph B incorporates instruction No. 8 and specifically points out the error therein, to which complaint is directed. This objection is followed by appropriate argument. Likewise paragraph C deals with instruction No. 9 in the same manner. Now if paragraph A, which sets forth instruction No. 7 and points out the errors therein, had been incorporated under the caption "Errors Relied on for Reversal," it would have been a complete compliance with the requirements of Rule 30. The same is to be said of paragraphs B, C, and D. The advantage of such a course would have been to bring before us, at the outset, *Page 250 the instruction itself and its alleged infirmities. Is the difference between the two methods so vital as to justify the dismissal of the appeal? In my judgment it is not. I am aware that we have too frequently, though infrequently, treated the breach as fatal to the appeal. Sometimes this has been done in flagrant cases where the breaches of the rule were not mitigated by adequate argument. Under like circumstances we have occasionally affirmed criminal appeals on the same ground notwithstanding that Section 14007 of the Code (1927) expressly provides that no assignment of errors shall be necessary and that Section 14010 requires an examination of the record regardless of informalities. Unless therefore it be deemed desirable and proper to challenge the power of the Legislature to prescribe methods of submitting an appeal, I think that we ought to treat Rule 30 as directory and advisory only. If in a given case the errors relied on be inadequate, it is not a grave burden upon us to look into the argument to ascertain whether the defect in one part has been cured in another. If a case be fairly argued, the argument should be considered for all that it is worth. Some attorneys have better gifts than others in that respect. We shall never attain a uniform standard of argument, nor of errors relied on for reversal. In deference to the statute, I would conform to its spirit.