Colby v. McDermont

71 N.W. 772, 6 N.D. 495, 1897 N.D. LEXIS 26

• Court: North Dakota Supreme Court
• Decided: June 1, 1897
• Status: Published

Opinion

Corliss, C. J.

This is an appeal from an order denying a motion for a new trial, and from a judgment based upon a verdict. The appellant is not in position to claim that the court erred in refusing to direct a verdict in his favor. Such motion was made at the close of the plaintiff’s case. After it was overruled, the defendant introduced evidence to support his defense. Having failed to renew his motion at the close of the case, he waived the error, if any, committed by the court in overruling his motion at the end of plaintiff’s case. Bowman v. Eppinger, 1 N. D. 21, 44 N. W. Rep. 1000. The appellant is not in position to complain of the charge of the court, he not having taken any exception to any portion thereof. So far as he essays to raise the question that the evidence is insufficient to support the verdict, the answer to his contention in this respect is that his assignments of error in this court do not relate to any such point! On the contrary, in the only assignment of errors which can possibly be held to raise the question of the sufficiency of the evidence, the appellant studiously excludes the idea that he desires to challenge the sufficiency thereof, by asserting that the court erred in overruling the motion for a new trial, for the reasons and on the grounds specifically set forth in the preceding assignments of error, all of which assignments relate to errors in law occurring at the trial, and not to the insufficiency of the evidence. We deem it in the interests of justice not to relax in this case our rules relating to assignments of error in this court. Finding that the appellant is not in position to raise the questions discussed by him in his brief, the order and judgment are affirmed.

(71 N. W. Rep. 772.) All concur.