Anderson v. Osborne-McMillan Elevator Co.

Decision Date17 November 1924
Citation200 N.W. 905,51 N.D. 730
PartiesANDERSON v. OSBORNE-McMILLAN ELEVATOR CO.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

An action properly triable to a jury, but tried to the court without a jury, is not triable anew in the Supreme Court.

Where, in an action properly triable to a jury, the appellant fails to make any specifications of error or specifications of insufficiency of the evidence, the appeal does not present to the Supreme Court the question of the sufficiency of the evidence to sustain the findings of fact made by the trial court.

Appeal from District Court, Ward County; Moellring, Judge.

Action by Fred L. Anderson, as receiver of the Donnybrook State Bank, against the Osborne-McMillan Elevator Company. From a judgment dismissing the action, plaintiff appeals. Affirmed.Moody O. Eide and Ben E. Combs, both of Minot, for appellant.

F. B. Lambert, of Minot, for respondent.

PER CURIAM.

This is an action for the alleged conversion of certain grain, upon which it is claimed that the Donnybrook State Bank had a chattel mortgage. The case was tried to a jury; but at the close of all the evidence the parties, in effect, agreed that the jury should be discharged and the cause submitted to and decided by the court. The jury was discharged, and the trial court, after due consideration, made findings of fact in defendant's favor, and ordered judgment for a dismissal of the action. Judgment was entered accordingly, and plaintiff has appealed therefrom and demanded a trial anew in this court. No specifications of error were served with the notice of appeal as required by section 7656, C. L. 1913; neither was there embodied in the statement of case a specification of the questions of fact which appellant desired the Supreme Court to review, or a demand for a trial anew of the entire case, as provided by section 7846, C. L. 1913. The defendanthas moved for a dismissal of the appeal, and urges: (1) That this case is not properly triable anew in this court; and (2) that in all other cases it is incumbent upon an appellant to serve with his notice of appeal a concise statement of the errors of law of which he complains, as prescribed by section 7656, C. L. 1913. The contentions so advanced by the respondent are correct, but do not constitute proper grounds for dismissal of the appeal.

[1][2] It is well settled that, “where an action properly triable to a jury is tried to the court without a jury, the Supreme Court will not try the case anew.” Lloyd Mortgage Co. v. Davis (N. D.) 199 N. W. 869. It is equally well settled that in all actions properly triable to a jury (except in cases where the errors complained of appear on the face of the judgment roll, Wilson v. Kryger, 29 N. D. 28, 149 N. W. 721), it is incumbent upon one...

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