CHRISTIANSON, Judge.
Plaintiffs brought this action to recover the possession of a stock of automobile and tractor parts and other merchandise. ■ In the' [194]*194complaint it is alleged that the plaintiffs are the owners and entitled to the immediate possession of such property; that their title is based upon a contract between the plaintiffs and defendants under which the defendants agreed to purchase said merchandise from the plaintiffs and to pay therefor in installments; that such contract is in default and has been terminated by due notice to the defendants; that said property is in the possession' of the defendants in the City of Fargo, Cass County, North Dakota; that possession thereof has been demanded by the plaintiffs and that such demand has been refused; that said personal property has not been taken for a tax assessment or fine pursuant to statute or seized under an execution or attachment against the property of either the plaintiffs or defendants, and that the value of such property is $3,000.
Ancillary to such action the plaintiffs instituted a proceeding of claim and delivery as provided under NDRC 1943, Chapter 32-07, and by an endorsement in writing upon the affidavit in such proceeding required the sheriff of the' county of Cass where the property was located to take the same from the defendants and deliver it to the plaintiffs. NDRC 1943, 32-0703. Accordingly the property was taken by the sheriff from the defendants and delivered to the plaintiffs in this action. The defendants interposed an answer and counterclaim. In such answer they specifically denied that the plaintiffs are the owners of or entitled to the immediate possession of the stock of automobile and tractor parts and other merchandise described in the complaint and they alleged that the defendants purchased such property on their own account and that the same constituted no part of the stock of goods sold to the defendants by the plaintiffs on a conditional sales contract. In'their counterclaim, the defendants allege that on June 23, 1950, they entered into a contract in writing wherein and whereby they purchased outright the trade name of Irving’s Tractor Lug Company and thereafter ■ filed a certificate in the office of the Clerk of the District Court of Cass County showing them to be copartners doing business under such trade name; that under the said contract the stock of goods then owned by the plaintiffs was sold to the defendants conditionally; that under said contract the defendants were authorized to purchase and did purchase additional merchandise and that the merchandise so purchased is not covered by the conditional sales agreement and that the plaintiffs have no right and title thereto and no right to the possession thereof; that the stock of automobile and tractor parts and other merchandise described in the complaint was purchased by the defendants from third parties within the last month and is contained in the original packages of shipments and that the defendants are the owners of said property; that by reason of the unlawful seizure and detention of such property by plaintiffs in this action the defendants were unable to resell such property, that their credit is harmed and their business destroyed and that they have been and are subjected to disturbance, annoyance and expense in defending' their title to said property, all to their damage in the sum of $6,000. The plaintiffs interposed a reply to the counterclaim denying each and every allegation thereof except as the same admitted allegations in the complaint. The case was tried to a jury upon the issues framed by these pleadings. At the close of all the evidence defendants moved the court to dismiss plaintiffs’ action on the grounds that it appears from the undisputed evidence and as a matter of law that the plaintiffs have no right or title to the possession of the goods concerned in the action, thereupon plaintiffs’ counsel stated: “May the record show that that motion is not resisted under the present state of the record, but that the plaintiff enters his agreement with this motion and does so, not waiving any of his rights to appeal from assigned errors under rulings of evidence during the course of the trial." Thereupon tlie court stated, “That, of course, then is agreed upon as far as that motion is concerned.” To which plaintiffs’ counsel replied, “That is correct, your honor.” Thereupon the court ruled that the motion to dismiss the action be granted. Immediately thereafter the defendants’ counsel moved that the court di[195]*195rect a verdict for the defendants on “the counterclaim in such sum as they (the jury) determine is proper under the instructions as to damages.” The attorney for the plaintiffs stated, “that motion is not resisted with the same reservation on right to appeal on assigned errors on rulings and instructions.” The court ruled that the motion be granted. Thereafter the case was submitted to the jury.
The jury returned a verdict in favor of the defendants for $4,600. On February S, 1952, judgment was entered pursuant to the verdict. After the entry of the judgment plaintiffs moved for a new trial. In the notice of motion and in the motion for a new trial plaintiffs specified as grounds for the motion for a new trial: insufficiency of the evidence to justify the verdict and that it is against law; errors in law occurring at the trial and excepted to by the plaintiffs; errors in instructions to the jury. In the specifications attached to the notice of motion and motion it is stated that the court erred in refusing to allow the plaintiffs to introduce certain testimony relating to alleged breaches of the conditional sales contract between the parties and testimony under an offer of proof made 'by the plaintiffs; that the court erred in admitting testimony as to the resale value of the merchandise in question over the objections of the plaintiffs ; that the court erred in its instructions to the jury as to the measure of damages and erred in refusing to give to the jury certain instructions requested by the plaintiffs. The motion for a new trial came on to be heard pursuant to notice on March 24, 1952. On March 26, 1952, the district court made an order denying the motion for a new trial. Such order was filed and entered in the office of the clerk of the district court on April 1, 1952. On July 30, 1952, the plaintiffs took and perfected an appeal from the judgment which was entered on February 5, 1952.
The appellant has the burden of presenting a record affirmatively showing-error. It is a rule of general application that an appellate court will indulge all reasonable presumptions in favor of the correctness of a judgment from which the appeal was taken. “Indeed error is never presumed on appeal, 'but must be affirmatively shown by the record; and the burden of so showing it is on the party alleging it, or, as sometimes stated, the burden of showing error affirmatively is upon appellant.” 4 C.J. 731-733; 5 C.J.S., Appeal and Error, § 1533; Erickson v. Wiper, 33 N.D. 193, 222, 157 N.W. 592; Ramage v. Trepanier, 69 N.D. 19, 26, 283 N.W. 471; State v. Van Horne, 71 N.D. 455, 457, 2 N.W.2d 1.
What errors are presented for review by the record presented on this appeal? Generally speaking a party aggrieved by an adverse verdict has a choice of remedies: he may move that the verdict be vacated and a new trial granted for any of the causes prescribed by law, or he may appeal from the judgment rendered and entered upon the verdict The two are independent remedies and the party aggrieved may invoke one or the other or both at his election provided he does so in the time and in the manner provided by the statute.
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CHRISTIANSON, Judge.
Plaintiffs brought this action to recover the possession of a stock of automobile and tractor parts and other merchandise. ■ In the' [194]*194complaint it is alleged that the plaintiffs are the owners and entitled to the immediate possession of such property; that their title is based upon a contract between the plaintiffs and defendants under which the defendants agreed to purchase said merchandise from the plaintiffs and to pay therefor in installments; that such contract is in default and has been terminated by due notice to the defendants; that said property is in the possession' of the defendants in the City of Fargo, Cass County, North Dakota; that possession thereof has been demanded by the plaintiffs and that such demand has been refused; that said personal property has not been taken for a tax assessment or fine pursuant to statute or seized under an execution or attachment against the property of either the plaintiffs or defendants, and that the value of such property is $3,000.
Ancillary to such action the plaintiffs instituted a proceeding of claim and delivery as provided under NDRC 1943, Chapter 32-07, and by an endorsement in writing upon the affidavit in such proceeding required the sheriff of the' county of Cass where the property was located to take the same from the defendants and deliver it to the plaintiffs. NDRC 1943, 32-0703. Accordingly the property was taken by the sheriff from the defendants and delivered to the plaintiffs in this action. The defendants interposed an answer and counterclaim. In such answer they specifically denied that the plaintiffs are the owners of or entitled to the immediate possession of the stock of automobile and tractor parts and other merchandise described in the complaint and they alleged that the defendants purchased such property on their own account and that the same constituted no part of the stock of goods sold to the defendants by the plaintiffs on a conditional sales contract. In'their counterclaim, the defendants allege that on June 23, 1950, they entered into a contract in writing wherein and whereby they purchased outright the trade name of Irving’s Tractor Lug Company and thereafter ■ filed a certificate in the office of the Clerk of the District Court of Cass County showing them to be copartners doing business under such trade name; that under the said contract the stock of goods then owned by the plaintiffs was sold to the defendants conditionally; that under said contract the defendants were authorized to purchase and did purchase additional merchandise and that the merchandise so purchased is not covered by the conditional sales agreement and that the plaintiffs have no right and title thereto and no right to the possession thereof; that the stock of automobile and tractor parts and other merchandise described in the complaint was purchased by the defendants from third parties within the last month and is contained in the original packages of shipments and that the defendants are the owners of said property; that by reason of the unlawful seizure and detention of such property by plaintiffs in this action the defendants were unable to resell such property, that their credit is harmed and their business destroyed and that they have been and are subjected to disturbance, annoyance and expense in defending' their title to said property, all to their damage in the sum of $6,000. The plaintiffs interposed a reply to the counterclaim denying each and every allegation thereof except as the same admitted allegations in the complaint. The case was tried to a jury upon the issues framed by these pleadings. At the close of all the evidence defendants moved the court to dismiss plaintiffs’ action on the grounds that it appears from the undisputed evidence and as a matter of law that the plaintiffs have no right or title to the possession of the goods concerned in the action, thereupon plaintiffs’ counsel stated: “May the record show that that motion is not resisted under the present state of the record, but that the plaintiff enters his agreement with this motion and does so, not waiving any of his rights to appeal from assigned errors under rulings of evidence during the course of the trial." Thereupon tlie court stated, “That, of course, then is agreed upon as far as that motion is concerned.” To which plaintiffs’ counsel replied, “That is correct, your honor.” Thereupon the court ruled that the motion to dismiss the action be granted. Immediately thereafter the defendants’ counsel moved that the court di[195]*195rect a verdict for the defendants on “the counterclaim in such sum as they (the jury) determine is proper under the instructions as to damages.” The attorney for the plaintiffs stated, “that motion is not resisted with the same reservation on right to appeal on assigned errors on rulings and instructions.” The court ruled that the motion be granted. Thereafter the case was submitted to the jury.
The jury returned a verdict in favor of the defendants for $4,600. On February S, 1952, judgment was entered pursuant to the verdict. After the entry of the judgment plaintiffs moved for a new trial. In the notice of motion and in the motion for a new trial plaintiffs specified as grounds for the motion for a new trial: insufficiency of the evidence to justify the verdict and that it is against law; errors in law occurring at the trial and excepted to by the plaintiffs; errors in instructions to the jury. In the specifications attached to the notice of motion and motion it is stated that the court erred in refusing to allow the plaintiffs to introduce certain testimony relating to alleged breaches of the conditional sales contract between the parties and testimony under an offer of proof made 'by the plaintiffs; that the court erred in admitting testimony as to the resale value of the merchandise in question over the objections of the plaintiffs ; that the court erred in its instructions to the jury as to the measure of damages and erred in refusing to give to the jury certain instructions requested by the plaintiffs. The motion for a new trial came on to be heard pursuant to notice on March 24, 1952. On March 26, 1952, the district court made an order denying the motion for a new trial. Such order was filed and entered in the office of the clerk of the district court on April 1, 1952. On July 30, 1952, the plaintiffs took and perfected an appeal from the judgment which was entered on February 5, 1952.
The appellant has the burden of presenting a record affirmatively showing-error. It is a rule of general application that an appellate court will indulge all reasonable presumptions in favor of the correctness of a judgment from which the appeal was taken. “Indeed error is never presumed on appeal, 'but must be affirmatively shown by the record; and the burden of so showing it is on the party alleging it, or, as sometimes stated, the burden of showing error affirmatively is upon appellant.” 4 C.J. 731-733; 5 C.J.S., Appeal and Error, § 1533; Erickson v. Wiper, 33 N.D. 193, 222, 157 N.W. 592; Ramage v. Trepanier, 69 N.D. 19, 26, 283 N.W. 471; State v. Van Horne, 71 N.D. 455, 457, 2 N.W.2d 1.
What errors are presented for review by the record presented on this appeal? Generally speaking a party aggrieved by an adverse verdict has a choice of remedies: he may move that the verdict be vacated and a new trial granted for any of the causes prescribed by law, or he may appeal from the judgment rendered and entered upon the verdict The two are independent remedies and the party aggrieved may invoke one or the other or both at his election provided he does so in the time and in the manner provided by the statute. King v. Hanson, 13 N.D. 85, 99 N.W. 1085; McCann v. Gilmore, 42 N.D. 119, 172 N.W. 236; Chaffee Bros. Co. v. Powers Elevator Co., 41 N.D. 94, 97, 170 N.W. 315. The laws of this state, NDRC 1943, 28-1902, provide:
“The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
“1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;
“2. Misconduct of the jury, and whenever any juror has been induced to assent to any general or special verdict or to a finding on any question submitted to the jurors, by the court by a resort to the determination of chance, such misconduct may b’e proved by the affidavit of any one of the jurors;
[196]*196“3. Accident or surprise which ordinary prudence could not have guarded against;
“4. Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial;
“5. Excessive damages appearing to have been given under the influence of passion or prejudice, but when a new trial is asked for on this ground and it appears that the passion and prejudice affected only the amount of damages allowed and did not influence the findings of the jury on other issues in the case, the trial court, on hearing the motion, and the supreme court, on appeal, shall have power to order a reduction of the verdict in lieu of a new trial, or to order that a new trial be had unless the party in whose favor the verdict was given re.-mits the excess of damages;
' “6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law;
“7. Errors in law occurring at the trial and excepted to by the party making the application; or
“8. Loss or destruction, without fault on the part of the party aggrieved, of the official shorthand minutes taken at the trial containing the testimony offered and the instructions of the court when given orally to the jury, or either, before a transcript thereof has been made.”
The motion of the plaintiffs for a new trial in this case was based upon the sixth and seventh grounds of NDRC 1943, 28-1902, and the particular rulings specified in the specifications attached to the notice of and motion for a new trial all fell within these subdivisions. In the specifications attached to the notice of appeal the plaintiffs specified as errors of law of which they complained, insufficiency of the evidence to support the • verdict, and errors in law occurring at the trial, consisting of rulings on the admission and exclusion" of evidence, and on instructions to the jury. So the questions and issues sought to be presented on the appeal from the judgment are the same as those which were presented for determination and determined on the motion for a new trial.
It is well settled that “where there is a motion for a new trial, rulings of the trial court which constitute proper grounds for a new trial under the statute must be presented upon such motion; otherwise they will be deemed waived.” Syl. 1, Larsen v. Friis, 48 N.D. 507, 185 N.W. 363; O’Dell v. Hiney, 49 N.D. 160, 190 N.W. 774; Zimbelman v. Lah, 61 N.D. 65, 237 N.W. 207. See, also, State ex rel. Storm v. Hought, 59 N.D. 301, 304, 229 N.W. 371. Where a motion for a new trial is made and denied before judgment is rendered and entered the order denying a new trial is reviewable on an appeal from the judgment. Keyes v. Baskerville, 42 S.D. 381, 175 N.W. 874; Vivian Independent Consol. School District No. 21 v. Boyles, 56 S.D. 524, 229 N.W. 390. See, also, Ellingson v. Northwestern Jobbers Credit Bureau, 58 N.D. 754, 227 N.W. 360; In re Bratcher’s Estate, 74 N.D. 12, 24 N.W.2d 54; In re Bratcher’s Estate, 76 N.D. 194, 34 N.W.2d 825. An order denying a motion for a new trial made after the entry of judgment is an appealable order, NDRC 1943, 28-2702(4), and where an order denying a motion for a new trial is made and entered after judgment is rendered and entered an appeal from the judgment alone does not bring up for review the order denying a new trial. Paulsen v. Modern Woodmen of America, 21 N.D. 235, 130 N.W. 231; Chaffee Bros. Co. v. Powers Elevator Co., supra; Morris v. Niles, 67 Wis. 341, 30 N.W. 353; Aultman, Miller & Co. v. Becker, 10 S.D. 58, 71 N.W. 753; Bank of Iowa and Dakota v. Oliver, 11 S.D. 444, 78 N.W. 1002; Irwin v. Lattin, 29 S.D. 1, 135 N.W. 759, Ann.Cas.1914C, 1044; Ontjes v. Thomas, 44 S.D. 542, 184 N.W. 795; Gade v. Collins, 8 S.D. 322, 66 N.W. 466.
The motion for a new trial involved, here was not an ex parte or summary application. A motion for a new trial after the entry of judgment can be [197]*197made only pursuant to notice to the adverse party as prescribed by law. Such motion can be made only on one or more of the grounds specified in the statute and the parties must he afforded an opportunity to he heard. In this case the required notice of motion was given. The parties appeared and a full hearing was afforded and had. The trial court had unquestioned jurisdiction of the parties and of the subject matter. The court had jurisdiction to hear and determine all questions submitted to it on the motion. It did hear the parties upon such questions and made its determination in the manner prescribed by law and that determination was subject to appeal. See, Weber v. Tschetter, 1 S.D. 205, 212, 46 N.W. 201, 203; Com’rs of Wilson County v. McIntosh, 30 Kan. 234, 238, 1 P. 572, 575; Dwight v. St. John, 25 N.Y. 203. The trial court had authority to grant the motion for a new trial or to deny it. In either case the order of the trial court was appealable. Unless an appeal were taken within the time allowed by law the order became final. If the trial court had granted a new trial and defendants had taken no appeal from the order within the time allowed by law, the order granting a new trial would have been final and binding upon the parties. In this case the court made an order denying the motion for a new trial. There was no appeal from such order nor was there any renewal of the motion or application for leave to renew the same or for leave to make another motion, or that the order denying a new trial be vacated, modified or changed. The determination made by the trial court of the questions and issues submitted to it on the motion for a new trial was no longer subject to review when the appeal from the judgment was taken. The time allowed for an appeal from the order denying a new trial had expired more than three months before the appeal from the judgment was taken and such order became final and binding upon the parties. All questions and issues sought to be determined on the appeal from the judgment were involved and presented for determination on the motion for a new trial and such questions and issues were determined against the plaintiffs by the order denying a new trial. By the motion1 for a new trial plaintiffs invoked the jurisdiction of the court to pass upon the questions and issues presented by such motion. The object of the motion and the relief asked for was vacation of the verdict and the judgment rendered thereon and a new trial of the action. The object of the appeal from the judgment and the relief sought to be obtained is precisely the same, namely a va-. cation of the verdict and a reversal of the judgment rendered upon the verdict and a new trial of the action, all upon the same basic grounds as those which had been presented to and determined by the court on the motion for a new trial. The order denying the motion for a new trial was made and entered by a court vested with jurisdiction of the parties and of the subject matter, and constituted an adjudication of the questions and issues presented for determination on the motion for a new trial. Such adjudication is binding upon the parties to this action, and determinative of the questions and issues sought to be presented by the plaintiffs for determination on this appeal. Gade v. Collins, 8 S.D. at page 325, 66 N.W. at page 467; Foss v. Van Wagenen, 20 S.D. 39, at page 41, 104 N.W. 605, at page 606; Irwin v. Lattin, 29 S.D. at pages 4-5, 135 N.W. at page 761; Dick v. Williams, 87 Wis. 651, 58 N.W. 1029; Enderlin State Bank v. Jennings, 4 N.D. 228, 230-233, 59 N.W. 1058, 1059, 26 L.R.A. 593; Weber v. Tschetter, 1 S.D. 205, 46 N.W. 201, 203; Dwight v. St. John, 25 N.Y. 203; Com’rs of Wilson County v. McIntosh, 30 Kan. 234, 1 P. 572; 2 Freeman on Judgments, 5th ed., 1401, 1405. See, also, Schulenberg v. Long, 57 N.D. 262, at page 264, 221 N. W. 69; Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132; Lookabaugh v. Cooper, 5 Okl. 102, 48 P. 99.
The judgment appealed from is affirmed..
MORRIS, C. J., and SATHRE, BURKE, and GRIMSON, JJ., concur.