25-1919. Appeal; briefs; rules; plain error.
The Supreme Court shall by rule provide for the filing of briefs in all causes appealed to the Court of Appeals or Supreme Court. The brief of appellant shall set out particularly each error asserted and intended to be urged for the reversal, vacation, or modification of the judgment, decree, or final order alleged to be erroneous, but no petition in error or other assignment of errors shall be required beyond or in addition to such requirement. The Court of Appeals or Supreme Court may at its option consider a plain error not specified in appellant's brief.
Source
Annotations
1. Assignments of error
2. Failure to assign error
3. Discussion of error
4. Plain error
5. Miscellaneous
1. Assignments of error
The Supreme Court, in reviewing decisions of the district court which affirmed, reversed, or modified decisions of the county court, will consider only those errors specifically assigned in the appeal to the district court and again assigned as error in the appeal to the Supreme Court. State v. Erlewine, 234 Neb. 855, 452 N.W.2d 764 (1990).
This statute, in addition to Neb. Ct. R. of Prac. 9D(1)d (rev. 1986), requires that each error assigned be separately stated in the appellant's brief. McCombs v. Prenosil, 226 Neb. 839, 415 N.W.2d 453 (1987).
Assignments of error must be set out in appellant's brief in order to be reviewed by the court. State v. Eckstein, 223 Neb. 943, 395 N.W.2d 515 (1986); United States Nat. Bank v. Feenan, 182 Neb. 524, 156 N.W.2d 29 (1968).
Assignments of error in brief are required to advise what questions are submitted for determination. Cook v. Lowe, 180 Neb. 39, 141 N.W.2d 430 (1966).
Brief of appellant is required to set out particularly each error relied upon for reversal. Northwestern Public Service Co. v. Juhl, 177 Neb. 625, 129 N.W.2d 570 (1964).
Assignments of error were sufficient. Ballantyne Co. v. City of Omaha, 173 Neb. 229, 113 N.W.2d 486 (1962); First Nat. Bank of Elgin v. Adams, 82 Neb. 801, 118 N.W. 1055 (1908).
Function of assignments of error is to set out the issues presented on appeal. Backer v. City of Sidney, 165 Neb. 816, 87 N.W.2d 610 (1958).
The function of assignments of error is to set out the issues presented on appeal. Smallcomb v. Smallcomb, 165 Neb. 191, 84 N.W.2d 217 (1957).
Assignment of errors in brief is required, except that court may note a plain error not assigned. Schaffer v. Strauss Brothers, 164 Neb. 773, 83 N.W.2d 543 (1957).
An assignment of error must point out the error of which complaint is made. Van Wye v. Wagner, 163 Neb. 205, 79 N.W.2d 281 (1956); Okuda v. Hampton, 154 Neb. 886, 50 N.W.2d 108 (1951).
Brief of appellant is required to set out particularly each error asserted and intended to be urged on appeal. Guyette v. Schmer, 150 Neb. 659, 35 N.W.2d 689 (1949).
Where sufficiency of evidence to support verdict was assigned as error in motion for new trial and discussed in the briefs, Supreme Court would consider question although not formally assigned as error in the brief. In re Inda's Estate, 146 Neb. 179, 19 N.W.2d 37 (1945).
Brief must contain specific statement of errors complained of. Mauder v. State, 97 Neb. 380, 149 N.W. 800 (1914).
Brief should be upon particular questions involved, not a mere general classification of subjects. Witt v. Caldwell, 95 Neb. 484, 145 N.W. 1006 (1914).
Only one brief is required specifying errors; technical assignments are unnecessary. Waxham v. Fink, 86 Neb. 180, 125 N.W. 145 (1910).
2. Failure to assign error
Generalized and vague assertions do not advise the Supreme Court of the issues submitted for decision. In such a circumstance, the decision appealed from will be affirmed unless the Supreme Court elects to note plain error. In re Interest of Rasmussen, 236 Neb. 572, 462 N.W.2d 621 (1990).
Where the appellant's brief does not contain specific assignments of error as required by this section and Neb. Ct. R. of Prac. 9D(1)d, the judgment will be affirmed in the absence of any plain error this court may note. State v. Tracy, 228 Neb. 610, 423 N.W.2d 479 (1988); Nebraska Mut. Ins. Co. v. Farmland Indus., 227 Neb. 93, 416 N.W.2d 221 (1987).
If a brief filed in the Supreme Court fails to make any specific assignments of error, and absent any plain error which the court may note, the judgment of the lower court will be affirmed. In re Interest of P.W., 224 Neb. 197, 397 N.W.2d 36 (1986).
In the absence of an assigned error, the judgment of the district court will be affirmed unless the record discloses plain error prejudicial to the appellant. Baggett v. City of Omaha, 220 Neb. 805, 373 N.W.2d 391 (1985).
Generally, repetition of statutory grounds for new trial is insufficient as assignments of error upon appeal. Wieck v. Blessin, 165 Neb. 282, 85 N.W.2d 628 (1957); Labs v. Farmers State Bank of Millard, 135 Neb. 130, 280 N.W. 452 (1938).
Contention that damages were excessive, not having been alleged as ground of error in brief, will not be considered on appeal. Kuhlman v. Schacht, 130 Neb. 511, 265 N.W. 549 (1936).
Failure to assign errors in brief, as provided hereby, was sufficient to justify affirmance. Federal Land Bank of Omaha v. Elsemann, 121 Neb. 397, 237 N.W. 288 (1931).
Where there is no assignment of errors, or same are not sufficiently specific, judgment should be affirmed. Gorton v. Goodman, 107 Neb. 671, 187 N.W. 45 (1922); Sellers v. Johnson, 107 Neb. 669, 186 N.W. 989 (1922); Wielinga v. Beatrice Creamery Co., 95 Neb. 406, 145 N.W. 987 (1914).
Assignments of error not definitely set out or discussed in brief are not ordinarily considered. Packard v. De Voe, 94 Neb. 740, 144 N.W. 813 (1913); First Nat. Bank v. Hedgecock, 87 Neb. 220, 127 N.W. 171 (1910).
Where appellant, in an appeal from a county court decision, fails to file in district court a statement of errors within the time required by Neb. Ct. R. of Cty. Cts. 52(I)(G), the district court is precluded from considering appellant's assigned errors, and instead must review the record only for plain error; the judgment of the district court will be affirmed absent plain error in the record. State v. Harlan, 1 Neb. App. 184, 488 N.W.2d 374 (1992).
3. Discussion of error
The general rule is that the consideration of appeals to this court is limited to errors assigned and discussed. Unless assigned and argued, claimed errors relied upon for reversal will not be considered. Wellman v. Birkel, 220 Neb. 1, 367 N.W.2d 716 (1985).
Errors assigned but not discussed will generally not be considered on appeal. Holt County Co-op Assn. v. Corkle's, Inc., 214 Neb. 762, 336 N.W.2d 312 (1983); State v. Hochstetler, 214 Neb. 482, 334 N.W.2d 455 (1983).
Consideration of assignments of error by this court is limited to those discussed in the briefs; any not accordingly discussed will not be addressed. Flakus v. Schug, 213 Neb. 491, 329 N.W.2d 859 (1983).
Consideration of a cause on appeal is limited to errors assigned and discussed. McClellen v. Dobberstein, 189 Neb. 669, 204 N.W.2d 559 (1973); Trute v. Skeede, 162 Neb. 266, 75 N.W.2d 672 (1956).
Errors assigned but not argued in brief may be disregarded. Garska v. Harris, 172 Neb. 339, 109 N.W.2d 529 (1961).
4. Plain error
The Nebraska Supreme Court and Court of Appeals reserve the right to review the record for plain error, regardless of whether the error was raised at trial or on appeal. Miller v. Brunswick, 253 Neb. 141, 571 N.W.2d 245 (1997).
While this section provides that consideration of the cause on appeal is limited to errors assigned and discussed by the parties, it also permits the Court of Appeals or Supreme Court to note any plain error not assigned. Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997).
While this section and Neb. Ct. R. of Prac. 9D(1)d provide that consideration of the cause on appeal is limited to errors assigned and discussed by the parties, they also permit the Supreme Court to note any plain error not assigned. Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996).
Generally this court only considers errors assigned and discussed; however, by statute and court rule we may note plain error not assigned. Tautfest v. Tautfest, 215 Neb. 233, 338 N.W.2d 49 (1983); Hartman v. Hartmann, 150 Neb. 565, 35 N.W.2d 482 (1948).
The Supreme Court at its option may consider plain error not specified in appellant's brief. Schmidt v. Richman Gordman, Inc., 191 Neb. 345, 215 N.W.2d 105 (1974); Hamaker v. Patrick, 123 Neb. 809, 244 N.W. 420 (1932); American State Bank of Springfield v. Phelps, 120 Neb. 370, 232 N.W. 612 (1930).
The right of the Supreme Court to notice a plain error not assigned rests on this section and rule of court. Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959).
Supreme Court may note a plain error not assigned. State ex rel. Fitzgerald v. Barkus, 168 Neb. 257, 95 N.W.2d 674 (1959); Dell v. City of Lincoln, 168 Neb. 174, 95 N.W.2d 336 (1959).
In divorce suit, court may at its option note a plain error not assigned. Zych v. Zych, 165 Neb. 586, 86 N.W.2d 611 (1957).
Court may consider error not specifically assigned to prevent improper disposal of public funds. State ex rel. J. L. Brandeis & Sons v. Melcher, 87 Neb. 359, 127 N.W. 241 (1910).
5. Miscellaneous
Where LSD tablet was used up in test and graph was not preserved, but it was stipulated results of laboratory test, investigation, and experiments were produced and copies given to defendant and no specific request for graph was made in discovery motion, refusal of court to suppress evidence was not error. State v. Batchelor, 191 Neb. 148, 214 N.W.2d 276 (1974).
Where appellee desires to have reviewed a portion of judgment against him, he must cross-appeal and assign error in relation thereto. Bastian v. Weber, 150 Neb. 709, 35 N.W.2d 791 (1949).
Sufficient exceptions were taken on behalf of accused. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Affirmance for want of briefs is as conclusive as if case was briefed and argued. DeBolt v. McBrien, 96 Neb. 237, 147 N.W. 462 (1914).