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assignment of error

Legal Definition of assignment of error

Dictionary entries near assignment of error.

assignment for the benefit of creditors

assignment of income

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“Assignment of error.” Merriam-Webster.com Legal Dictionary , Merriam-Webster, https://www.merriam-webster.com/legal/assignment%20of%20error. Accessed 22 Feb. 2024.

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You Can't Assign Error To A Ruling The Lower Court Didn't Make

Assignments of error are one aspect of Virginia appellate practice liable to trip up an unsuspecting practitioner. Under Rule 5:17(c)(1) of the Rules of the Supreme Court of Virginia, an assignment of error must do more than just state "that the judgment or award is contrary to the law and the evidence." However, the Rule also makes clear that an assignment of error should be concise and "without extraneous argument." Over the years, the Court has spilled a lot of ink explaining how a sufficient assignment of error achieves balance between those two poles.

But that is a post for another day. Today, I want to focus on another aspect of Rule 5:17(c)(1): The requirement that an assignment of error must "address the findings, rulings, or failures to rule on issues in the trial court or other tribunal from which an appeal is taken."

An assignment of error must accurately reflect the lower court's ruling.

The Court will not weigh in on issues not reached by the court below. For example, in Parker v. Carilion Clinic , 296 Va. 319, 819 S.E.2d 809 (2018), the plaintiff asserted claims against an entity and two employees arising from the unauthorized disclosure of her confidential medical information. The plaintiff's first assignment of error argued that the trial court "erred in ruling there is no cause of action under Virginia law against an employee of a healthcare provider when the employee makes an extra-judicial disclosure of sensitive confidential personal health information without the authorization of the patient-plaintiff."

But the trial court never made that ruling. It merely ruled that the entity wasn't liable under respondent superior because the employees acted outside the scope of their employment. It did not address whether the plaintiff had claims against the employees individually . Accordingly, the Court dismissed the assignment of error.

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In  Parker , the appellant secured a (partial) reversal and remand on the issue the trial court actually decided.  So her attempt to assign error to a nonexistent ruling had no real adverse consequences.  A far more damaging mistake an attorney can make, however, is  misdescribing the lower court's ruling in an assignment of error .

That is what happened in  Martin v. Lahti , 295 Va. 77, 809 S.E.2d 644 (2018), a medical malpractice case.  At trial, the plaintiff testified that the deceased patient made a statement after the surgery in question: "I thought this would be an easy operation."  The trial court sustained the doctor's objection to the admissibility of that statement on relevance grounds.

On appeal, however, the plaintiff's assignment of error did not reflect the trial court's ruling that the statement in question was irrelevant.   Instead, her assignment of error argued that the trial court "erred in ruling that Plaintiff's proffered evidence was inadmissible hearsay and speculation."  Because that assignment of error did not accurately describe the trial court's ruling, the Court held that it was not sufficient.  Worse, because the plaintiff failed to assign error to the ruling the trial court did make, she waived her ability to challenge the trial court's ruling on appeal.

Crafting assignments of error in the Supreme Court of Virginia is tricky business.  There are several mistakes an attorney can make that will torpedo a client's appeal.  One of them is misdescribing the lower court's ruling.  Before you file a petition for appeal, make absolutely sure that your assignments of error accurately reflect what happened below.

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18 U.S. Code § 3733 - Assignment of errors—(Rule)

Assignments of error on appeal abolished, Rule 37(a)(1).

Necessity of specific objection in order to assign error in instructions, Rule 30.

Rule 37 of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1947 , eff. July 1, 1968 , and is covered by Rule 3, Federal Rules of Appellate Procedure, set out in the Appendix to Title 28 , Judiciary and Judicial Procedure.

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CAVEAT APPELLANT

Supreme court cracks down on insufficient assignments of error.

But the dangers relating to assignments cannot be defused simply by plugging something, anything, into that section of your petition. Several very recent developments have convinced me that the Supreme Court is looking with much greater care at assignments, and dismissing appeals where the assignments aren’t satisfactory. This, in turn, leads to the arrival of some very unwelcome orders in attorneys’ incoming mail, followed by some very delicate conversations with the client, describing how the lawyer’s mistake has scuttled the appeal.

As with many of my essays, my goal here is to ensure that my readers never have to place that phone call. But here, it’s a bit more than that. Some of the rulings I’ll describe here caught me genuinely by surprise – though happily I have not received one of these orders in one of my cases – and signal the need for every appellant’s counsel to reevaluate how he or she crafts assignments. Ignore this lesson at your peril.

The Supreme Court has described the purposes of assignments in these terms:

“[A]ssignments of error serve several distinct and important functions. Their chief function is to identify those errors made by a circuit court with reasonable certainty so that this Court and opposing counsel can consider the points on which an appellant seeks a reversal of a judgment. In addition, assignments of error also enable an appellee to prepare an effective brief in opposition to the granting of an appeal, to determine which portions of the trial record should be included in the parties’ joint appendix, and to determine whether any cross-error should be assigned.” Friedline v. Commonwealth , 265 Va. 273, 278 (2003).

I have been informed that Virginia is one of only five states that continue to use what are called “binding” assignments of error, those that irreversibly restrict the scope of the appeal to the issues framed thereby. I’m told that the rest of the country has moved toward a looser standard, one that requires only a forecast of the issues to be presented on appeal. It is not my purpose here to advocate either the current Virginia approach, which puts us in a small minority of states, or a move to the majority rule; I merely want you to understand the difference, and to appreciate that we aren’t likely to change teams any time soon. Here, assignments frame the permissible appellate issues, much as initial and responsive pleadings do in trial courts. If you plead a cause of action for negligence, then the trial court won’t listen to your argument, or admit your evidence, on a breach of contract claim.

Let’s start with the relevant text from Rule 5:17(c):

Under a separate heading entitled “Assignments of Error,” the petition [for appeal] shall list the specific errors in the rulings below upon which the appellant intends to rely. Only errors assigned in the petition for appeal will be noticed by this court. Where appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to questions presented in, or to actions taken by, the Court of Appeals may be included in the petition for appeal to this court. An assignment of error which merely states that the judgment or award is contrary to the law or the evidence is not sufficient. If the petition for appeal does not contain assignments of error, the appeal will be dismissed.

Each of these sentences contains a useful lesson in its own right. The first sentence creates the requirement, and gives us the only available guidance on the level of detail required: “. . . shall list the specific errors in the rulings below . . .” (Just what the word specific means in that sentence is the subject of considerable discussion below.) The second sentence tells you that if you assign errors only to issues A, B, and C, then the court won’t consider your argument on alleged legal errors D and E. If you want the Supreme Court to consider an issue, you must list it. So far, so good.

The third sentence contains an important procedural guideline. If you’re coming from a loss in the CAV, keep in mind that the Supreme Court must address its ultimate ruling to that court, not to the trial court. That means that you have to assign error to what the Court of Appeals did, not to what the trial court did. (If you’re chicken-hearted about this, it is permissible to use the following language: “The Court of Appeals and the trial court erred in ruling that . . .”) In the fourth sentence, the rule gives us one example of an assignment that doesn’t measure up to the requirement of specificity. And the final sentence announces the death penalty for petitions that contain no assignments at all.

Unfortunately, that same death penalty awaits appellants who submit insufficient assignments. If you do include assignments of error, but they aren’t specific enough, the court will dismiss your petition for appeal, citing Rule 5:17(c). (In effect, the rule is applied as though the words, “or does not contain sufficient assignments of error,” were added.) And you don’t get a do-over; you will not be permitted to amend your assignment to make it comply with the rule (as you would have the opportunity to do in the trial court if your complaint had been impermissibly fuzzy). Your appeal simply dies, and all you can do is place two phone calls, one of which is to your client.

Of course, a direct violation of the rule has always been fatal. For example, the Commonwealth Transportation Commissioner saw one legal argument die a premature death last year, when it listed the following assignment in a condemnation appeal: “The trial court erred in failing to find that the jury commissioners’ report is contrary to the evidence at trial.” This assignment, the court ruled, directly violates the fourth sentence of the rule. CTC v. Target Corp ., 274 Va. 341, 352-53 (2007).

But in the past two weeks, I have seen at least anecdotal evidence that the court has ratcheted up its enforcement of this rule. As a result, many assignments that I would once have regarded as safe, are now insufficient in the eyes of the court. And those are the only eyes that matter. Here are some of the more recent developments:

– In late May, the Supreme Court issued an order directing an attorney who has, I understand, a substantial appellate practice, to show cause why the attorney’s privilege to practice in that court should not be suspended. The reasons behind this order are many in number but uniform in nature – the attorney has had nine appeals dismissed for procedural violations, most of those relating to assignments of error.

– On June 4, as I sat in the Supreme Court awaiting my turn to argue orally, I saw an appeal by the Commonwealth in a sexually violent predator case. The chief justice interrupted the AAG and asked her how her assignment of error was sufficient. He then read it aloud, and I think I can paraphrase it accurately here: “The trial court erred in excluding the expert testimony of Dr. John Jones.” When I heard the chief’s question, I wondered to myself what could be wrong with that assignment. After all, the lawyer seemed to “lay his finger on the error” (let’s leave aside the change in gender for the moment; I’m quoting some pretty dusty language here) by specifying the exact legal ruling that was being challenged. That’s been the standard for assignments for a long time in Virginia, going back at least to First Nat’l Bank v. William R. Trigg Co. , 106 Va. 327, 342 (1907) (quoting an 1810 New York case).

– On June 10, the court entered an order dismissing an appeal for an insufficient assignment in a legal malpractice case. In that appeal, the lone assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.” Again, this assignment specified the exact legal ruling that was being appealed, but the court found it wanting.

This last ruling made me sit bolt upright in my chair (I’m a fairly laid-back guy, so it takes a considerable stimulus to make me sit bolt upright), as I finally put the three developments together and made an unmistakable deduction. The court is getting noticeably tougher on appellants in evaluating the sufficiency of assignments, and it has done so without advance notice. Hence the title of this essay.

Vagueness is not the only assignment-related issue that gets the court’s unwelcome attention. One particularly venial sin (just ask any justice, and watch as the skin on the back of his or her neck gets red) is where an appellant, after getting a writ, tries to change the wording of the assignments. Perhaps he got some pointed questions from the writ panel, and wants to ensure that his wording is sufficient. Unfortunately, no dice. The general rule is that once you file your petition, the language of the assignment is chiseled in stone. I am aware of no exceptions to this rule. I believe you could get leave of court, if you ask for it nicely, to correct something like an obvious typographical or spelling error, but I have never seen this done. I cannot conceive that the court would ever consent to a substantive change.

This sin is venial and not mortal, by the way, because it doesn’t necessarily carry the death penalty. You can still proceed with your appeal, but you’ll be limited to the original assignment, as set forth in your petition. See, for example, Hamilton Dev. Co. v. Broad Rock Club , 248 Va. 40, 43-44 (1994). Of course, you will have alienated the court by doing this, as the justices will perceive that you’re trying to pull a fast one. The justices are all very pleasant people, but this is one sure-fire way to make them mad.

So, what’s a careful appellant to do? It would be easy to overreact, and start crafting assignments that are replete with detail – say, two pages apiece. The trouble with that is that now the assignments are taking over the brief. This kind of assignment is part of what got the appellate lawyer the show cause order last month. Two pages each is just too long.

The best advice I can give you is something I have heard recently from one of the Robes – use the valuable word because in your assignments. For example, if the appellant in the legal malpractice case had written, “The trial court erred in granting [the appellee’s] motion for summary judgment, because a material dispute of fact existed on causation,” then I sense his appeal would still retain vitality. Similarly, if the AAG in the sexually violent predator case two weeks ago had written, “The trial court erroneously ruled that the expert testimony of Dr. John Jones was speculative and therefore inadmissible,” she’d be sleeping a lot better right now, because that gives the Supreme Court the detail it needs to evaluate the issues in the appeal in something other than a vacuum.

This new development has alarmed — maybe stunned would be an equally accurate word — a number of experienced appellate attorneys, including me, so if we’re worried about it, the casual appellate practitioner had better be very concerned. My own editorial comment is that I regard this as a very unfortunate trend, among other reasons because it’s always best to have decisions made on the merits instead of based on technical rules violations. In addition, those who follow the court only casually may well chalk this up to a common misperception that the justices look for any excuse they can find in order to dunk as many cases as possible, purely to cut down on their workload. (That perception, from everything I’ve been able to discern, is completely incorrect.) But the court has the right to interpret its rules as it sees fit, and it is not wrong to view this kind of defect in terms of the court’s very jurisdiction. And that, you will readily understand, is something the court will never take lightly.

Postscript – June 19

I have learned that the language in the assignment of error in the legal malpractice case described above is virtually indistinguishable from the assignment in the successful appeal of Shutler v. Augusta Heath Care , 272 Va. 87 (2006). Two years ago, the Supreme Court granted Shutler’s petition based on the following single assignment of error:

“The trial court erred in granting the defendant’s motion for summary judgment.”

There is, you will readily discern, no meaningful difference between these two assignments. But the Shutler assignment led to a reversal, while the one in the legal malpractice claim led to a dismissal. I cannot explain to you the reasons for the court’s collective change of heart, but I emphatically can warn you about it, so you won’t suffer the same fate.

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2019 Louisiana Laws Code of Criminal Procedure Art. 844. Assignment of errors; sanctions for failure to file timely

A. The party appealing shall file with the appellate court a written designation of those errors which are to be urged on appeal and furnish a copy to the trial judge and all counsel. This assignment of errors shall be filed in accordance with the uniform rules of the appropriate appellate court.

B. If the appellant fails to comply with these provisions and fails to secure an extension in accordance with Article 916(1), the trial judge on his own motion or motion of the clerk or any party or upon referral by the appellate court and after hearing shall either:

(1) Extend the time within which the assignment of errors shall be filed.

(2) Impose a fine not to exceed five hundred dollars upon the appellant or his attorney or both if the failure is found by the court to be arbitrary and capricious.

C. If the record is not lodged in the appellate court within sixty days after the motion for the appeal is made or within the extended time granted by the proper court or if the record is lodged in the appellate court without an assignment of errors, the appellate court may adjudge the appellant, his attorney, or both guilty of contempt of court and impose a punishment authorized by law.

D. The trial judge may submit such per curiam comments as he desires.

Amended by Acts 1974, No. 207, §1; Acts 1980, No. 537, §1; Acts 1981, No. 296, §1; Acts 1984, No. 527, §1; Acts 1997, No. 642, §1.

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The Law Dictionary

Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed.

ASSIGNMENT OF ERRORS Definition & Legal Meaning

Definition & citations:.

the statement of mistakes that have supposedly been made during a trial in a lower court. These errors are used to take the case to a higher court.

This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

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Assignment Of Errors

A statement by the appellant of the errors alleged to have been committed in the lower court is an assignment of errors, a type of appellate PLEADING used to point out to the appellate court the grounds for review. It controls the scope of an appeal because if a ground for review is not contained in it, it will not ordinarily be considered by the court. The assignment of errors is usually part of the notice of appeal, the bill of exceptions, the transcript of the record, or the brief, although in some jurisdictions, it is a separate document.

Additional topics

  • Appeal - Appellate Brief
  • Appeal - Record On Appeal
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Law Library - American Law and Legal Information Free Legal Encyclopedia: Air weapon to Approximation of laws Appeal - Right To Appeal, Final Decision, Grounds, Time Of Appeal, Record On Appeal, Assignment Of Errors - Notice of Appeal, Bonds

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IMAGES

  1. Error: Assignment to Expression With Array Type: A Comprehensive Guide

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  2. Example of an Assignment Error Matrix in the Case of Complete Guessing

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  3. Theory of Errors

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  4. Error Correction Worksheet

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  5. Error Assignment 1

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  6. Sources of Error

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VIDEO

  1. Common Errors

  2. Common Errors

  3. Correction of errors part 1 7march23

  4. Assignment # 04 by Faisal Sarwar the role of computer in various industries

  5. (17) Chapter 4

  6. Examples on error function

COMMENTS

  1. Assignment of error Definition & Meaning

    Learn the meaning of assignment of error, a legal term that allows a party to correct the errors made by the court during the trial. Find out how to cite this entry and explore related words and games.

  2. The Assignment of Errors in Appellate Briefs

    The Assignment of Errors in Appellate Briefs Harry R. Venables John Veblen Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Part of the Jurisprudence Commons Recommended Citation Harry R. Venables & John Veblen, Comment, The Assignment of Errors in Appellate Briefs, 23 Wash. L. Rev. & St. B.J. 62 (1948).

  3. Should the Court of Appeals Require Binding Assignments of Error

    An assignment of error which does not address the findings, rulings, or failures to rule on issues in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence, is not sufficient.

  4. Assignment of errors legal definition of Assignment of errors

    Error is the basis for review of a final decision rendered by a court or administrative agency. Error is called to the attention of a court through the use of objections, protests made during the course of a proceeding that an action taken by the opposing side in a controversy is unfair or illegal.

  5. 32 CFR § 150.15

    This is the official text of a federal regulation that governs the format and procedure of filing assignments of error and briefs in military courts of criminal appeals. It requires that assignments of error be filed within 60 days after the record is received, and that briefs be filed within 30 days after the assignments of error are filed. It also specifies the types of references and attachments that may be included in the briefs and assignments of error.

  6. Rule 5.45

    This rule requires assignments of error in opening briefs of appellants and crossappellants in Oregon appellate procedure. It specifies the format, content, and standards of assignments of error, and allows the court to decline to consider some assignments of error. It also allows the argument to support the assignments of error.

  7. Assignment of Error Law and Legal Definition

    Assignment of error is the specification of the trial court's alleged errors on which the appellant relies in seeking an appellate court's reversal, vacation, or modification of an adverse judgment. Learn more about this legal term, its related terms, and how to find a legal form in minutes from USLegal.

  8. Assignment Of Error

    What is 'Assignment Of Error'? Learn more about legal terms and the law at FindLaw.com

  9. Don't Assign Error To A Nonexistent Ruling

    Learn how to craft assignments of error that accurately reflect the lower court's ruling and avoid mistakes that can trip up your appeal. The web page explains the requirements of Rule 5:17 (c) (1) of the Rules of the Supreme Court of Virginia, which requires assignments of error to address the findings, rulings, or failures to rule on issues in the trial court or other tribunal from which an appeal is taken. See examples of assignments of error that misdescribe or omit the lower court's ruling.

  10. 18 U.S. Code § 3733

    References in Text. Rule 37 of the Federal Rules of Criminal Procedure was abrogated Dec. 4, 1947, eff. July 1, 1968, and is covered by Rule 3, Federal Rules of Appellate Procedure, set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

  11. Supreme Court Cracks Down on Insufficient Assignments of Error

    The web page explains the purposes, requirements and enforcement of assignments of error in Virginia appeals. It provides examples of recent cases where the Supreme Court dismissed appeals for insufficient assignments of error and how to avoid them. It also offers tips on how to craft assignments of error that comply with the rule and meet the purposes of assignments.

  12. What's an Appellant (or Appellee) to Do? Supreme Confusion Over

    In footnote 6 of that opinion, the Court finds "no merit in the defendants' argument that Howell's assignment of error challenging the circuit court's decision to strike her evidence and enter summary judgment for the defendants does not comport with Rule 5:17 (c)." Being an assignment of error junkie, I contacted one of the lawyers involved.

  13. Crackdown on Assignments of Error

    An assignment of error which merely states that the judgment or award is contrary to the law or the evidence is not sufficient. If the petition for appeal does not contain assignments of error, the appeal will be dismissed. Each of these sentences contains a useful lesson in its own right.

  14. Louisiana Code of Criminal Procedure Article 844 (2019)

    This assignment of errors shall be filed in accordance with the uniform rules of the appropriate appellate court. B. If the appellant fails to comply with these provisions and fails to secure an extension in accordance with Article 916(1), the trial judge on his own motion or motion of the clerk or any party or upon referral by the appellate ...

  15. The Assignment of Error

    Cheney C. Joseph Jr., The Assignment of Error, 35 La. L. Rev. (1975) Available at: htps://digitalcommons.law.lsu.edu/lalrev/vol35/iss3/3 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons.

  16. ASSIGNMENT OF ERRORS Definition & Legal Meaning

    Definition & Citations: the statement of mistakes that have supposedly been made during a trial in a lower court. These errors are used to take the case to a higher court. Disclaimer This article contains general legal information but does not constitute professional legal advice for your particular situation.

  17. What's the Right Number of Assignments of Error?

    No. of Issues: Judge's Reaction: 3: Presumably arguable points. The lawyer is primo. 4: Probably arguable points. The lawyer is primo minus: 5: Perhaps arguable points.

  18. State v. Morgan, 129 Ohio App. 3d 838

    In his first assignment of error, appellant contends that the trial court erred in denying his motion to dismiss on double jeopardy grounds because the trial court did not state with specificity its reasons for declaring a mistrial, as required by R.C. 2945.36. Thus, upon retrial, he claims that he was twice placed in jeopardy for the same offense.

  19. Rule 10.3

    Rule 10.3 - Content of Brief. (a)Brief of Appellant or Petitioner. The brief of the appellant or petitioner should contain under appropriate headings and in the order here indicated: (1)Title Page. A title page, which is the cover. (2)Tables. A table of contents, with page references, and a table of cases (alphabetically arranged), statutes and ...

  20. Assignment Of Errors

    A statement by the appellant of the errors alleged to have been committed in the lower court is an assignment of errors, a type of appellate PLEADING used to point out to the appellate court the grounds for review. It controls the scope of an appeal because if a ground for review is not contained in it, it will not ordinarily be considered by the court.

  21. SAMPLE BRIEF

    APPELLANT'S ASSIGNMENT OF ERROR The trial court abused its discretion by allowing the testimony of an expert witness when the witness did not have specialized knowledge, skill, experience, or training regarding the subject matter of the testimony under Evid.R. 702.

  22. Binding Assignments of Error

    Under a heading entitled "Assignments of Error," the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely, or the specific existing case law that should be overturned, extended, modified, or reversed.

  23. G.R. No. 142316

    1. To release to the plaintiff the owner's duplicate copy of TCT No. 299551 in the same [sic] of Benjamin A. Tango; 2. To release to plaintiff the originals of the REM contracts dated December 4, 1990 and February 17, 1992 and to cause the cancellation of the annotation of the same on plaintiffs [sic] TCT No. 299551; 3.

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  25. AD user not able to see assignment

    AD user was assigned to resources using access control assignment. Cause As we used access control solution to configure assignment by importing user role and resource pool, we need to install agentless module under admin console->Host console-> Select the PAM framework manager host ->Install agentless module. Resolution

  26. UnboundLocalError: local variable 'dest_eröff' referenced before assignment

    dest_dir = "I:\\\\My Drive\\\\Programmieren\\\\Buchführung" if not os.path.exists(dest_dir): os.mkdir(dest_dir) for file_name in os.listdir(dest_dir): if...