Aultman, Miller & Co. v. Jones

• Decision Date: 01 February 1906
• Citation: 106 N.W. 688,15 N.D. 130
• Court: North Dakota Supreme Court
• Parties: AULTMAN, MILLER & CO. v. JONES.

15 N.D. 130

106 N.W. 688

AULTMAN, MILLER & CO.

v.JONES.

Supreme Court of North Dakota.

Feb. 1, 1906.

Syllabus by the Court.

Under the rule that a party urging error must present a record of the facts upon which the error is predicated, this court will not review the trial court's action in excusing a juror when the record contains merely the exception, and wholly omits the examination and challenge.

Error without prejudice in the order of eliciting evidence is not ground for reversal.

The admission of incompetent evidence which tends merely to prove facts which are expressly admitted in the pleadings is not prejudicial, and is not, therefore, reversible error.

Appeal from District Court, Pierce County; John F. Cowan, Judge.

Action by Aultman, Miller & Co. against Andy Jones. Judgment for plaintiff, and defendant appeals. Affirmed.Burke & Middaugh and A. E. Coger, for appellant. Guy L. Whittemore, H. Steenerson, and Charles Loring, for respondent.

YOUNG, J.

The plaintiff brought this action to recover the sum of $806.60, which sum the plaintiff alleges the defendant collected from certain notes left with him by it for collection and failed to account for. The answer admits the receipt of the notes, but alleges that all moneys collected were paid to the plaintiff and that all notes remaining unpaid were returned. The jury returned a verdict for plaintiff for the amount claimed. This appeal is from the judgment.

All of the three alleged errors which are urged as ground for reversal are without substantial merit. The first assignment is that “the court erred in excusing Juror Haugen.” The abstract does not present a record upon which this assignment can be reviewed. It merely presents the defendant's exception, and does not contain the examination of the juror or the challenge which was interposed. Under the rule that an appellant, to secure a review of an alleged error, must present a record of the facts upon which the error is predicated, the assignment is not reviewable. The defendant was called by the plaintiff as an adverse witness. In the course of his examination, after denying that a certain letter to the plaintiff (Exhibit 3), which purported to bear his signature, was not in fact signed by him, he was asked this question: “Q. Look at Exhibit 3. If that is not your signature, who wrote that signature? It's your name?” Defendant's counsel objected to the question “as calling for a conclusion of the witness, no foundation laid for it.” The objection was overruled and exception taken. The witness answered: “That is a man named McIlvain.” This ruling is assigned as error. The assignment has no merit. The objection goes to the formal order in which the testimony was elicited. The question assumed that the defendant knew who wrote the signature. Properly he should have first been asked if he knew who wrote it....