American Case & Register Co. v. Boyd

• Citation: 133 N.W. 65,22 N.D. 166
• Decision Date: 26 October 1911
• Court: North Dakota Supreme Court

133 N.W. 65

22 N.D. 166

AMERICAN CASE & REGISTER CO. v. BOYD et al

Supreme Court of North Dakota

October 26, 1911

Appeal from Stutsman County Court; Marion Conklin, J.

Action by the American Case & Register Company against Oscar Boyd and another, doing business under the firm name of Boyd & Mares. From a judgment for plaintiff, defendants appeal.

Affirmed.

John Knauf and C. S. Buck, for appellants.

Oscar J. Seiler and A. W. Aylmer, for respondent.

OPINION

FISK J.

This appeal is from a judgment of the county court of Stutsman county. The cause of action is founded on a promissory note executed and delivered by defendants to plaintiff on May 27 1908, and given for the purchase price of a certain account register sold by the latter to the former. The defense is that such contract of purchase was canceled by defendants before the property was shipped.

The issues were tried to a jury, and at the conclusion of the testimony both sides moved for a directed verdict, whereupon the lower court discharged the jury, and subsequently made findings of fact and conclusions of law favorable to plaintiff, and entered judgment accordingly. Thereafter defendants procured a settlement of a statement of the case, but no specifications of error are included therein. Their counsel are evidently laboring under the erroneous belief that the case is triable de novo in this court, for they caused such statement to be settled in accordance with the practice under the so-called Newman law and such statement, instead of having incorporated therein the necessary specifications of error, embraces the statement that the defendant demands a trial de novo in the supreme court. Appellant's brief is also prepared on such erroneous theory. The action is one at law, and not in equity, and was properly triable to, and was in fact tried to, a jury.

The mere fact that both parties moved for a directed verdict at the close of the testimony did not operate to change the action from one at law to a suit in equity. By making these motions for the direction of a verdict, the attitude of each party was that there was no issue of fact to be submitted to the jury, and that the court should dispose of the case as a matter of law. By such motions they are deemed to have impliedly consented to a disposition of the case without the aid of a jury, by the submission of all questions to the court, and if, in disposing of the case it...