Reeves & Co. v. McGee

145 N.W. 544, 33 S.D. 276, 1914 S.D. LEXIS 19

Opinion

POLLEY, J.

This Case is before’ the court upon an appeal from the judgment and order overruling appellant’s motion for a new trial. The printed record brought here by the appellant contains what purports to be assignments of nine separate errors committed by the court in the trial of the cause and in the denial of appellant’s motion for a new trial.

[j] The only ground presented by appellant for a reversal is the insufficiency of the evidence to* sustain the findings of fact and conclusions of law made by the trial court. But an examination of the printed record discloses that neither in the purported assignments of error nor in the statement of facts therein is 'found any specification of the particulars in which the evidence is insufficient to sustain 'the findings, and for that reason said record does not show any error for 'review. While the ninth assignment, to wit, that the court erred in overruling appelant’s motion for a new trial, is sufficient in itself, yet as the insufficiency of the evidence is the only ground upon which a reversal is asked, and as said record fails to- point out wherein said evidence is insufficient, this assignment is as unavailing as the others.

To entitle the appellant upon its motion for a new trial to a consideration 'by the trial court of the insufficiency of the evidence to sustain the findings of fact, it was incumbent upon such appellant to- -have filed in the trial court, as a part of the settled record therein, specifications of the particulars wherein is claimed such evidence to he insufficient. Without such specifications, no matter how insufficient in fact 'the evidence may have 'been, the trial court was 'hound to deny the motion for a new trial so far as it was based on the alleged insufficiency of the evidence to support the findings.

[2] That there were such 'specifications of particulars might have been shown either by copying the same into- the printed record and referring -to them- as the specification of particulars forming a part of the settled record, or :by assigning the insufficiency of the evidence to support each finding complained of and 'specifying in the asignment the particulars that had previously 'been specified in the settled record, and by referring in the printed record', by number and page, to the particular specification contained in the settled record upon which each particular assignment is 'based. See Hepner v. Wheatley, 144 N. W. 923, recently decided by this court.

There being nothing 'before us to show such specification of particulars in the trial court, there is nothing to show that the trial court erred in denying the motion for new trial, and its order denying same must be affirmed.