State v. Van Horne

2 N.W.2d 1, 71 N.D. 455, 1941 N.D. LEXIS 186

• Court: North Dakota Supreme Court
• Decided: December 1, 1941
• Docket: File 6796
• Status: Published

Opinions

Per Curiam.

This is an appeal by the plaintiffs from a judgment in favor of the defendants for a dismissal of the action. The action was brought to recover certain moneys belonging to the state of North Dakota which it is alleged that the defendant Van Horne received as Motor Vehicle Registrar of the state of North Dakota, and which he thereafter retained as his own. Plaintiffs’ demand is set forth in two causes of action. The first cause alleges that the defendant Van Horne, as Motor Vehicle Registrar received and was paid a salary in excess of that which he was entitled to receive, and the second cause of action is predicated upon the proposition that said defendant Van Horne, while serving as Motor. Vehicle Registrar received and! retained payments made by a private concern for the furnishing to such concern of lists of car registrations and other information of commercial value to such private concern.

The defendant Van Horne interposed an answer that put in issue the material allegations of the complaint, and further alleged that all payments made to the said Van Horne as and for salary were paid upon vouchers duly and regularly presented to and filed with the State Auditing Board and passed upon and approved by such Board in accordance with and reliance upon a written opinion of the attorney general duly made to such Board.

The case was tried to a jury and resulted in a verdict for the de~ fendant Van Horne for a dismissal of tbe action. From tbe judgment entered pursuant to tbe verdict, plaintiffs bave appealed.

Tbe only errors assigned on tbis appeal relate to tbe instructions to tbe jury. It is contended that tbe court erred in giving certain instructions and also that it erred in not giving others.

It is a well-settled rule of general application that “ ‘an appellate court will indulge all reasonable presumptions in favor of tbe correctness of tbe judgment, order, or decree from wbicb tbe appeal is taken. In other words it will be presumed on appeal, in tbe absence of a contrary showing, that tbe trial court acted correctely and did not •err. Indeed error is never presumed on appeal, but must be affirmatively shown by tbe record; and tbe burden of so showing it is on tbe party alleging it, or as sometimes stated, tbe burden of showing error affirmatively is upon tbe appellant or plaintiff in error.’ 4 C. J. 731-733. See also Erickson v. Wiper, 33 ND 193, 222, 157 NW 592. And on an ‘incomplete record, tbe appellate court will presume any conceivable state of facts within tbe scope of tbe pleadings and not inconsistent with the record wbicb will sustain and support tbe ruling or decision complained 'of; but it will not, for tbe purpose of finding reversible error, presume tbe existence of facts as to wbicb the record is silent.’ 4 C. J. 736.” Brissman v. Thistlethwaite, 49 ND 417, 421, 422, 192 NW 85. Tbis rule applies with full force to tbe court’s instructions to tbe jury.

“Tbe burden is on appellant to show that tbe trial court erred in charging tbe jury; and in tbe absence of a contrary showing, tbe appellate ■court will, for tbe purpose of sustaining tbe judgment but not of reversing it, indulge in all reasonable presumptions and intendments in favor of tbe sufficiency and propriety of tbe instructions given to thé jury by tbe lower court.” 5 CJS p. 362.

Tbe record on tbis appeal furnishes no basis for an assignment of •error upon tbe alleged failure of the court to give further instructions. It is admitted that the plaintiffs made no request for any instructions •other than those wbicb were given. It is tbe settled rule in tbis state that in tbe absence of a request for instructions mere nondireetion does not constitute reversible error unless tbe nondirection' is of such na ture that the failure to instruct amounts to a misdirection. Huber v. Zeiszler, 37 ND 556, 164 NW 131.

The assignments of error based upon the instructions given consist of certain quoted portions of the instructions, said to be erroneous, without pointing out wherein they are claimed to be erroneous, or resulted in prejudice to the plaintiffs, .under the evidence in the case. There was no claim in the court below that the verdict is contrary to the evidence; and there is not and could not be any such claim in this court. Jacobson v. Klamann, 54 ND 867, 211 NW 595. The instructions are within the issues framed by the pleadings, and their effect upon the verdict that was reached cannot be determined without a consideration of the evidence that was introduced.

The appellants have failed to sustain their assignments of error by the record presented on this appeal.

.Judgment affirmed.

Burr, Ch. J., and Christianson, Nuessle, Morris and Buriie,, JJ., concur.