Security Improvement Co. v. Cass County

84 N.W. 477, 9 N.D. 553, 1900 N.D. LEXIS 177

• Court: North Dakota Supreme Court
• Decided: November 10, 1900
• Status: Published

Opinions

Wallin, J.

This action is brought to quiet the title to certain parcels of land situated in the city of Fargo. The plaintiff owns the fee ,and the real purpose of the action is to cancel certain taxes or apparent taxes charged against the land in the years 1892 to 1898, inclusive, and also to vacate certain tax sales of the land, made upon such taxes. Defendant answered the complaint. The answer alleges in substance that all of said taxes and tax sales were regular and in all respects valid. The action was tried to the court and submitted for its determination, whereupon the trial court made and filed findings of fact and conclusions of law whereby it was adjudged that some of the tax levies and some of the tax sales in question were illegal and void, and that others involved were in all respects valid levies and sales; and judgment was directed to he entered pursuant to such findings, and judgment was entered accordingly. The plaintiff has appealed to this court from all parts of said judgment which are adverse to the plaintiff. Defendant has not appealed.

A statement of the case embracing all of the evidence offered at the trial was settled and allowed, and the same has been incorporated with the judgment roll and transmitted to this court. The statement omits to include any demand of a retrial in this court either of the entire case or of any specified fact in the case. The procedure which was had in the action in the court below was necessarily governed by section 5630, Rev. Codes, 1899. But the party appealing had under said section an election, and could determine for himself whether the entire case or some fact therein should be retried in this court, or, on the other hand, whether this court should be precluded from retrying any question of fact in the case. By not demanding a retrial of any fact in this court the appellant has under the express provisions of said section, as well as under the repeated decisions of this court, deprived this court of all power or right to examine the evidence or retry any question of fact in the case. Section 5630, supra; Bank v. Davis, 8 N. D. 83, 76 N. W. Rep. 998; Hayes v. Taylor, 9 N. D. 92, 81 N. W. Rep. 49; Nichols v. Stangler, 7 N. D. 102, 72 N. W. Rep. 1089; also, case decided at this term,—State v. McGruer, 9 N. D. infra, 84 N. W. Rep. 363. And where we are precluded from a retrial of any fact the mandate of the section above cited is that all questions of fact “shall be deemed on appeal to have been properly decided by the trial court.”

Counsel for appellant has filed a brief in this court, in which he repeatedly calls attention to the evidence in the record, and attempts to point out wherein the trial court, as counsel claims, erred or was mistaken in finding the facts which that court found as ultimate facts, and included in its findings of fact. Counsel calls attention to the fact that it appears that the evidence submitted below is undisputed, and was in fact stipulated by counsel, except as to the testimony of one witness who testified for the plaintiff. Counsel now urges this court to look at the evidence, and claims that upon an examination of the evidence this court will not fail to deduce ultimate facts therefrom which will differ radically from those deduced by the trial court. But, on the other hand, counsel for the respondent has, in his brief, called the attention of the court to the same evidence, and argues in his brief that the trial court was fully justified by the evidence in making the findings of ultimate fact which were filed in the court below. Counsel asserts in his brief that there is no question of evidence in the case. It is, however, manifest that counsel for the appellant is seeking in this court to alter and reverse the findings‘of fact made below; and, to accomplish this object, counsel urges that the undisputed evidence — embracing a mass of stipulated evidential facts — will, upon a proper consideration thereof by this court, lead to a reversal of the findings and judgment. But in the case at bar it has been seen that this court is precluded from a trial of any of the facts embraced within the issues. Nor can this be different in a case where the evidential facts were stipulated, and, as stipulated, were presented to the trial court. It appears that despite the stipulation the trial court found the ultimate facts to be quite different from those which counsel for plaintiff would deduce from such evidential facts. It was the province and duty of the trial court to weigh and consider all the evidence, excluding that which was incompetent, and from the evidence deduce the ultimate facts upon all the issues involved. See Gull River Lumber Co. v. School Dist. No. 39, 1 N. D. 500, 48 N. W. Rep. 427. It must follow from what has been said that this court is precluded not only from a retrial of any facts in issue, but from any consideration of the evidence offered in the court below and embraced in the statement. Upon this record, therefore, we are to consider the statutory judgment roll, and nothing more. Counsel for appellant is not in a position to attack the findings of fact, and our attention is not called by counsel to any conclusion of law, as embodied in the findings, which is claimed to be unwarranted by the facts as found and filed in the District Court. Every legal presumption is in favor of the regularity and validity of the judgment entered in the court below, and hence we shall be compelled to direct an affirmance of the judgment.

All the judges concurring.