Baird v. Clooten, 5885.

• Decision Date: 21 April 1931
• Docket Number: No. 5885.,5885.
• Citation: 236 N.W. 356,60 N.D. 699
• Parties: BAIRD v. CLOOTEN et al.
• Court: North Dakota Supreme Court

60 N.D. 699

236 N.W. 356

BAIRD

v.CLOOTEN et al.

No. 5885.

Supreme Court of North Dakota.

April 21, 1931.

Syllabus by the Court.

Questions of the sufficiency of the evidence and of the excessiveness of the verdict, when raised upon a motion for a new trial, are addressed to the sound legal discretion of the trial court.

Syllabus by the Court.

Evidence examined and found to sustain the action of the trial court in reducing the amount of the verdict.

Syllabus by the Court.

Such order must be based upon the evidence, and should not be coupled with unreasonable or capricious conditions.

Additional Syllabus by Editorial Staff.

Appeal from District Court, Burleigh County; R. G. McFarland, Judge.

Action by L. R. Baird, as receiver of the Farmers' & Merchants' State Bank of Driscoll, against Harry Clooten and another.There was a verdict for defendants, and, from an order granting a new trial, defendants appeal.

Remanded, with direction for modification.

F. E. McCurdy, of Bismarck, for appellants.

Zuger & Tillotson, of Bismarck, for respondent.

GRIMSON, District Judge.

This case is an outgrowth of the case of Clooten et al. v. Wang et al., reported at57 N. D. 793, 224 N. W. 198.The plaintiffs in that action, defendants here, had sought to quiet title to certain premises in Burleigh county in themselves upon the strength of a tax title.The court held their tax deed void and that Baird, as receiver of the Farmers' & Merchants' State Bank of Driscoll, was the owner of the property subject to some liens for taxes and mortgages.During the years 1927 and 1928, while the defendants held tax title and their action was pending, they occupied and farmed the premises, and removed therefrom a certain building which they incorporated in their own house on adjoining premises.The plaintiff brings this action and seeks to recover the rents and profits of said premises during the years 1927, 1928, and 1929, and also for the deterioration done said premises by the removal of the house.The defendants come in, admit they farmed the premises and removed the house, but set up as counterclaims their lien for the taxes they paid in connection with the tax title and some other claims for work done upon the premises during the time they farmed them.

The case was tried to a jury, a general verdict rendered, and judgment thereupon entered in favor of the defendants for $342.43 and costs.The plaintiff thereafter made a motion for a new trial, and urged among other grounds, that the evidence was insufficient to sustain the verdict and that the verdict was excessive.

The trial court, upon considering said motion filed a memorandum decision finding that the evidence was not sufficient to sustain the verdict in the amount found, but that the evidence did warrant a finding in favor of the defendants for $118.42.The court then concluded that a new trial be granted, unless within fifteen days plaintiff tendered the defendants the sum of $118.42, together with the costs taxed in the sum of $49, less the cost of the transcript ($120), and the defendants accept the same.Plaintiff made such a tender, but the defendants refused to accept the reduction.An order was thereupon entered for a new trial, and this appeal is taken by the defendants from that order.

[1][2] In its memorandum decision the court discusses the evidence, the sufficiency thereof to support the verdict returned, and wherein that verdict was excessive.The question of the sufficiency of the evidence is addressed to the sound discretion of the trial court, and, if the evidence shows that the trial court exercised legal discretion in acting upon that question, then its decision thereon will not be disturbed.The only question for the appellate court in such ca...