Baird v. Stephens
| Decision Date | 06 December 1929 |
| Docket Number | 5725 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of McLean County, McFarland J. Defendants appeal from the judgment and from an order denying the motion for judgment notwithstanding the verdict.
Affirmed.
Hugh H. McCulloch, W. C. Cull and Hyland & Foster for appellants.
The plaintiff, in an action in conversion, has the burden of proof of establishing his title to the property in suit. Dearborn Truck Co. v. Nederloe, 49 N.D. 473, 193 N.W. 311.
In an action for conversion the plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary. Raasch v. Goulet, 52 N.D. 707, 204 N.W. 338; Holmes v. Bailey, 16 Neb. 300, 20 N.W. 304.
Zuger & Tillotson, for respondent.
If there is no motion for a directed verdict when plaintiff rests, nor at the close of the entire case, nor at any time the trial court is without power to grant a motion for judgment notwithstanding. Carson State Bank v. Grant Grain Co. 50 N.D. 558, 197 N.W. 146; Gross v. Miller, 51 N.D. 755, 200 N.W. 1012; Johns v. Ruff, 12 N.D. 74, 94 N.W. 440; West v. Northern P.R. Co. 13 N.D. 221, 100 N.W. 254.
A verdict will not be set aside because of communications between the jurors and the officers unless the communications are of such a character as to show prejudice to the losing party. 16 R.C.L. 295.
The lien of a chattel mortgage is not impaired by a commingling of the goods mortgaged with other goods, without knowledge of the mortgagee, nor by the sale of such commingled property to a third party with notice. 8 Cyc. 574.
A new note is not payment of an old note, where both notes are evidence of the same debt, and where the original note is retained by the payee or holder as security for the new, and a chattel mortgage taken to secure the payment of the debt evidenced by the original note remains as security for the payment of that debt. Farmers State Bank v. Jeske, 50 N.D. 813, 197 N.W. 854.
This is an action to recover damages for the alleged conversion of certain flax and wheat in which the plaintiff claimed a special property as a mortgagee. The case was tried to a jury and resulted in a verdict in favor of the plaintiff. Defendants moved in the alternative for judgment notwithstanding the verdict or for a new trial. The motion was denied and the defendants appeal from the judgment and from the order denying the motion for judgment notwithstanding the verdict. The principal ground urged by the appellants for a reversal of the judgment is that the evidence is insufficient to sustain the verdict in this, that the evidence shows that the mortgagor owned and operated a farm consisting of certain lands described in the chattel mortgage and certain additional adjoining lands and that the grain produced on the lands described in the mortgage, as well as on the land adjoining, not covered by the mortgage, were threshed at the same time and placed in the same bin, and that consequently the grain received by the defendants from the mortgagor consisted in part of grain not subject to plaintiff's mortgage and that the evidence is not sufficiently definite to warrant a finding by the jury as to the exact amount of mortgaged grain the defendants received.
Respondent however asserts that the sufficiency of the evidence is not involved and cannot be considered on this appeal. In support of this contention respondent's counsel call attention to the fact that the record discloses that there was no motion for a directed verdict; that no error is assigned upon the denial of the motion for a new trial, and that the appeal does not purport to be taken from the order of the trial court denying such motion. The record discloses the facts to be as so asserted by respondent's counsel; and we are agreed that, under the rule established by repeated decisions of this court, the sufficiency of the evidence cannot be considered on this appeal. It is the established law in this jurisdiction that a motion for a directed verdict is a necessary prerequisite to a judgment notwithstanding the verdict; and that where there is no motion for a directed verdict there is no error in denying a motion for judgment notwithstanding the verdict. Ennis v. Retail Merchants Asso. Mut. F. Ins. Co. 33 N.D. 20, 36, 156 N.W. 234; Carson State Bank v. Grant Grain Co. 50 N.D. 558 197 N.W. 146; Gross v. Miller, 51 N.D. 755, 200 N.W. 1012. See also § 7643, Supp. It is likewise settled by numerous decisions of this court that the sufficiency of the evidence cannot be raised in this court unless that question was raised in the trial court, either by motion for a directed verdict or by motion for a new trial, and the ruling or rulings on such motion or motions is assigned as error on appeal. Morris v. Minneapolis, St. P. & S. Ste. M. R. Co. 32 N.D. 366, 155 N.W. 861; Freerks v. Nurnberg, 33 N.D. 587, 157 N.W. 119; Buchanan v. Occident Elevator Co. 33 N.D. 346, 157 N.W. 122; Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592; Horton v. Wright, B. & S. Co. 43 N.D. 114, 174 N.W. 67; Bailey v. Davis, 49 N.D. 838, 193 N.W. 658; Rokusek v. National Union F. Ins. Co. 50 N.D. 123, 195 N.W. 300; Veum v. Stefferud, 50 N.D. 371, 196 N.W. 104; Jacobson v. Klamann, 54 N.D. 867, 211 N.W. 595; Olson v. Great Northern R. Co. 56 N.D. 690, 219 N.W. 209. Under the rule established by these decisions it is clear that the question of the sufficiency of the evidence is not involved and that this court may...
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