Anderson v. Osborne-Mcmillan Elevator Company
| Decision Date | 17 November 1924 |
| Citation | 200 N.W. 905,51 N.D. 730 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Ward County, Moellring, J plaintiff appeals.
Affirmed.
Moody O. Eide & Ben E. Combs, for appellant.
Under proper pleadings the existence of the lien of the first mortgage may be shown by the defendant when sued by the holder of the second mortgage for conversion, to reduce the damages recoverable by the plaintiff. Citizens Nat. Bank v. Osborne McMillan El. Co. 131 N.W. 266.
F. B Lambert, for respondent.
When the one side is silent if the other side has made a motion for a directed verdict he cannot complain because the case is taken away from the jury. Zimmerman v. G. & N.W. R Co. 129 Minn. 4, 151 N.W. 412.
It is up to the party against whom a directed verdict is asked to determine in advance for himself whether he feels that there is anything to go to the jury and whether or not his client's interests should be submitted to a jury. First Nat. Bank v. Strauss (N.D.) 194 N.W. 900.
A tenant can give no more title than he has and not having any he of course could give none by any mortgage that he might execute. Butler v. Rice, 17 Hun, 406; 15 Am. Dig Cent. ed. col. 1120.
It was not a mortgage until the lien attached by the bringing into existence of the property enumerated therein. Hotsetter v. Brooks, 4 N.D. 363; Bank v. Mann, 2 N.D. 460.
The burden is on the holder of an invalid chattel mortgage to show that the defendant took with notice. La Crosse v. Anderson, 9 S.D. 497.
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 § 7656, Comp. Laws 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 § 7846, Comp. Laws 1913. The defendant has 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 § 7656, Comp. Laws 1913. The contentions so advanced by the respondent are correct, but do not constitute proper grounds for dismissal of the appeal.
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 Mortg. Co. v Davis, ante, 336, 36 A.L.R. 465, 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 who desires to challenge the correctness of a judgment by an appeal to the supreme court to "serve with the . . . notice of appeal, a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict . . . he shall so specify." And it is required that "a specification of insufficiency of the...
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