Nichols & Shepard Co. v. Stangler

72 N.W. 1089, 7 N.D. 102, 1897 N.D. LEXIS 49

• Court: North Dakota Supreme Court
• Decided: October 18, 1897
• Status: Published

Opinions

Wallin, J.

The only question before us for decision upon the record in this case is presented by a motion made in behalf of the respondent. It is this: Can this court consider the evidence embodied in the statement and printed in the abstract for the purpose of reviewing the facts? Counsel for the appellant contends that the case was tried as a court case in the District Court, and hence tried under section 5630 of the Revised Codes. This is not conceded by counsel for the respondent. But we deem it unnecessary to consider this question, and shall, for the purposes of the motion, assume that the case was regularly tried as a court case, under section 5630, supra. If it was in fact tried as a jury case, it is conceded by the appellant that the record does not permit an examination of questions of fact in this court. At the close of the case, findings of fact were waived by counsel, and none were ever made by the trial court. Certain conclusions of law were filed by the trial court, and a judgment directed to be. entered in favor of the respondent, and such judgment was thereupon entered. The appeal is from this judgment. A statement of the case was settled, and appended thereto were certain specifications of error. The first eight of such specifications relate wholly to matters of fact, and undertake to point out wherein the evidence is insufficient to “justify the conclusions of law and judgment in this case.” Following these were seven specifications of error, which plaintiff, in its brief, denominates “ errors of law.” An examination of these alleged errors of law discloses that they are all predicated upon the rulings of the trial court admitting testimony which plaintiff claims should have been excluded. These alleged errors of law, however, in the view we have taken of the case, are wholly immaterial, and cannot be considered in any aspect of the record, for the reason that none of such errors are assigned as errors in the brief of appellant’s counsel filed in this court. The only errors assigned in this court are as follows: First, the conclusions of law are not justified by the evidence; second, it was error to order judgment for the intervener; third, it was error to enter judgment against the plaintiff. It must not be inferred from what has been said that this court would rule upon the errors of law predicated upon rulings upon the admissibility of evidence in the court below, if such rulings had been regularly assigned as errors in this court. Under section 5630, such rulings cannot be reviewed or made the basis of reversing the case for error, as could be done in a jury case. In this class of cases this court does not sit as a court of errors. On the contrary, we are required in such cases to try the case anew upon all the evidence offered below. In this class of cases 'objections to evidence may be “ noted,” and thereafter preserved in a statement, if the case is appealed. In this court such objections would only be considered in connection with a new trial of the facts, and for the sole purpose of considering whether evidence so objected to was admissible under common-law rules of evidence. If inadmissible, such evidence will be rejected in deciding the case here; otherwise it will be considered. Butinno event will mere rulings upon evidence below, however erroneous, furnish a basis for an order reversing the case, if the evidence itself is embraced in the record sent to this court. In the case at bar we cannot enter upon the consideration of the alleged errors below in admitting testimony, because the record does not permit this court to enter upon a new trial of the issues. Upon this record we cannot examine the issues of fact tried in the court below, because no findings of fact were ever made below.

This brings us to.the pivotal question presented by the motion. Respondent contends that we are debarred from a trial of the issues of fact anew, and, consequently, from a re-examination of the evidence contained in the record. This contention must be sustained. Section 5630 declares: “For the purpose of reviewing upon appeal questions as to the sufficiency of the evidence to sustain the findings of fact in any action tried under the provisions of this section a statement of the case may be prepared and settled within the time and in the manner provided in article 8 of chapter 10 of this Code.” Turning back to the section referred to (now section 5467, Rev. Codes), we find the following language: “ There shall be incorporated in every such statement a specification of the particulars in which the evidence is alleged to be insufficient to justify the verdict or other decision,” etc. It is well settled that the phrase “ other decision ” has reference to findings of fact, and does not refer to the judgment, and entirely settles that specifications of errors of fact which are leveled at the judgment only are futile, and will be ignored. The section last cited is explicit on the point. It declares, “ If no such specification is made, the statement shall be disregarded on motion for a new trial and on appeal.” See, also, Coveny v. Hale, 49 Cal. 552; Moyes v. Griffith, 35 Cal. 556; Investment Co. v. Boyum, 3 N. D. 538, 58 N. W. Rep. 339; O'Brien v. Miller, 4 N. D. 308, 60 N. W. Rep. 841; Hostetter v. Elevator Co., 4 N. D. 357, 61 N. W. Rep. 49; First Nat. Bank v. Merchants Nat. Bank, 5 N. D. 161, 64 N. W. Rep. 941; Schmitz v. Heger, 5 N. D. 165, 64 N. W. Rep. 943. Being precluded by the condition of the record — i. e. by the entire absence of findings of fact — from proceeding to retry the case in this court under the provisions of the statute, we are likewise, and for the same reason, precluded from any review of the rulings, if they may be styled rulings, upon the admission of evidence below of which the appellant now complains. As has been seen, such rulings or “ objections ” become important only upon a trial anew in this court. The errors actually assigned in the brief of appellant’s counsel are leveled at the conclusions of law and the judgment entered below, and it is conceded that these specifications must fall unless this court shall retry the case, and upon such retrial take a different view of the facts and evidence from that taken by the trial court. As we cannot try the case anew, it follows that the judgment below must stand, and said judgment will therefore, in all things, be affirmed. All the judges concurring.