
    F. B. Cameron v. Amelia Roemele.
    (Case No. 4750.)
    1. Assignment of errors.— A paper detached from the transcript, and which purports to be an assignment of errors, filed without leave or consent of parlies,' and not in obedience to a certiorari to perfect the record, cannot be considered by the supreme court.
    2. Same — Presumption,— A transcript certified to by the clerk as a full, true and correct transcript of all the proceedings had in the cause, was delivered to the attorney for the plaintiff in error on the 20th of November, 1882, on which day a separate paper, purporting to be an assignment of errors in the same cause, was filed by the district clerk. Held, it will be presumed that the transcript was delivered before the paper designated as an assignment of errors was filed.
    S. Rules of court — Assignment óf erbobs.— The statute requires a distinct specification of errors to be made before the record is taken from the clerk’s office, and that this shall be attached to and constitute a part of the record. R. S., 1037. Under rule 97 for the government of the supreme court, the assignment of errors must be filed at the time of filing affidavit or bond for appeal, or bond for writ of error; while rule 98 provides that if the assignment of errors is filed after the transcript is delivered, the clerk may deliver to any party to the cause a certified copy of it, with date of filing; but there is no requirement which entitles it, in the absence of consent of parties or leave of the court, to be regarded as a part of the transcript.
    4. Same. — A cause may be dismissed under rule 39 for non-compliance with the rules regulating assignments of error, in the absence of good cause shown to excuse the omission. Attention called to the necessity of complying with rules of court governing assignments of error.
    Error from Collin. Tried below before the Hon. Joseph Bledsoe.
    The character of the suit is unimportant in view of the opinion, which relates alone to matters of practice.
    
      K. R. Craig, for plaintiff in error.
   Stayton, Associate Justice.—

In this cause there is no assignment of errors in the transcript, but on a detached paper, filed at the same time the transcript was filed .in this court, there is what pur-> ports to be an assignment of errors. It is filed without leave, without consent of parties, so far as the record shows, and not in obedience to a writ of certiorari to perfect the record.

Such being the case, the paper cannot be considered as an assignment of errors, for that must constitute a part of the transcript made up, as the statute and the rules of this court prescribe. If' for any reason the transcript, when filed in this court, is imperfect, it may be perfected (rule 11); that has not been done in this case.

The petition for writ of error, and writ of error bond, was filed on the 6th of May, 1882, and the citation in error was served on the 19th of the same month, but the paper which purports to be an assignment of errors was not filed until the 20th day of November, 1882, on which day the transcript was delivered to the attornej^ for plaintiff in error. The presumption would be from these facts, that the transcript was delivered before the assignment of errors was. filed, otherwise the certificate of the clerk to the transcript would be untrue.

Rule 97 for the government of the district courts provides that the assignment of errors shall be filed at the time of filing affidavit or bond for appeal, or bond for writ of error; and rule 98 provides that if the assignment of errors is filed after the transcript is delivered, then the clerk, upon request, shall give to any party to the cause a certified copy of it, with the filing and date thereof; but it does not provide that it shall be filed and considered as a part of the transcript without the permission of this court, or consent of parties.

Rule 39, to regulate procedure in this court, provides that for want of compliance with the rules regulating the filing of assignments of error, a cause may be dismissed upon motion under rule 8, unless good cause is shown why the same was not done, and that it was filed in such time and under such circumstances that the defendant in error has nominally not suffered any injury in the defense of the case in this court.

No motion to dismiss has been made in this cause, nor has any excuse been given for failure to comply with the rules and with the statute regulating the filing of assignments of error.

The statute provides that “The appellant or plaintiff in error-shall, in all cases, file with the clerk of the court below an assignment of errors, distinctly specifying the grounds.on which he relies, before he takes the transcript of the record from the clerk’s office, and a copy of such assignment of errors shall be attached to, and form a part of, the record; and all errors not so distinctly specified, shall be considered by the supreme court or court of appeals as-waived.” R. S., 1037.

The statute and rules were intended not only to facilitate the-courts in the disposition of cases, but also to furnish to all parties means by which they can know at proper times what they are called upon to meet.

In this case we are not called upon to determine whether a failure to file an assignment of errors at the same time the writ of error bond was filed would debar a plaintiff in error from a hearing upon his assignments, if objection was made thereto upon that ground, and we have only referred to the subject for the purpose of calling attention of parties to the necessity for complying with the rules, or for showing some good excuse for not so doing. The irregularities in this case are such that the assignments cannot be considered.

We have looked into the record, and find no error fundamental in its character for which the judgment should be reversed, and it is affirmed.

Affirmed.

[Opinion delivered April 17, 1883.]  