Board of Trustees of Ripon College v. Brown
| Decision Date | 09 November 1896 |
| Docket Number | 10,088--(38) |
| Parties | BOARD OF TRUSTEES OF RIPON COLLEGE v. CHARLES W. BROWN |
| Court | Minnesota Supreme Court |
Appeal by defendant from a judgment of the district court for Hennepin county, in favor of plaintiff for $ 1,538.20, after trial before Smith, J., and a jury. Affirmed.
Judgment affirmed.
F. B Hart and S. R. Child, for appellant.
C. C Joslyn, for respondent.
On October 22, 1887, F. Belle Hobart was the owner of certain lots in the city of Minneapolis, and on that day executed a mortgage dated on that day to the plaintiff to secure the payment of the sum of $ 1,500, due in five years. On November 12, 1887, she placed a second mortgage on the lots to secure the payment of $ 500, and shortly thereafter conveyed the lots to defendant by warranty deed, which contained the assumption clause hereinafter set out. The plaintiff foreclosed its mortgage, and this action is brought, upon the defendant's agreement in the deed, to recover the balance of the mortgage debt remaining unpaid after such foreclosure. The defense was a denial that the defendant ever promised to pay the plaintiff's mortgage; that the plaintiff extended the time of payment of the mortgage without the knowledge or consent of the defendant, knowing that he was a surety only for its payment; and fraud in the foreclosure of the mortgage, whereby the plaintiff was enabled to and did purchase the lots at the foreclosure sale for $ 500, although they were then worth a sum exceeding the entire amount due on the mortgage. At the close of the evidence the trial court instructed the jury to return a verdict for the plaintiff, which was done. A motion for a new trial was made and denied, judgment entered, and the defendant appealed from the judgment.
The defendant's important assignment of error, upon which rest many of his minor assignments, is that the court erred in directing a verdict for the plaintiff. The plaintiff insists that the record on this appeal does not purport to contain all the evidence upon all or any one of the issues of fact tendered by the answer and litigated at the time, and that therefore this court cannot review the question whether the evidence was sufficient on any point to require the cause to be submitted to the jury.
Where the trial court orders a verdict in view of and based upon the entire evidence, or the evidence on some particular issue, the whole of such evidence must be incorporated in the settled case or bill of exceptions, if a review of the order or instruction is sought in this court. The reason and necessity of this rule are obvious. It is true, as claimed by the defendant, that the cases in which the rule has been applied were generally appeals from orders denying or granting motions for a new trial where the question was as to the sufficiency of the evidence to sustain the verdict. But such cases do not differ in principle from those where it is sought to review the court's order directing the jury to return a verdict for one or the other of the parties, because in both cases the action of the court is had in view of, and is based upon, the entire evidence given on the trial of the issue.
Suppose, in this case, the defendant had moved the court for an order directing the jury to return a verdict in his favor, and it was denied, and he wished to review here the ruling, manifestly it would be necessary for him to bring up all the evidence upon which the court's decision was based, because error will not be presumed and a consideration of the whole evidence upon which the trial court acted is necessary in order to determine whether or not it erred. So, too, and for the same reason, it is necessary to have before us all the evidence in this case or upon some particular issue of fact, if the action of the court in granting plaintiff's motion for a direction to the jury is to be reviewed. Therefore, if it be true that all the evidence given on the trial upon at least one of the issues of fact litigated is not before us, we cannot review the action of the court in giving the instruction complained of.
This brings us to the question whether it affirmatively appears from the bill of exceptions that it contains all the evidence on any one of the issues of fact litigated. It is clear that the bill does not purport to contain the entire evidence on any issue, unless it be the issue as to the fraud of the plaintiff in foreclosing its mortgage. Appellate courts will give a bill of exceptions or settled case, including the trial judge's certificate thereto, a reasonably liberal construction, but they will not, by construction, supply omissions, or remedy material defects therein. Therefore, where it is necessary to have the entire evidence in the record, it must clearly and affirmatively appear from the face of the bill of exceptions or settled case, or the trial judge's certificate, that such is the fact. This rule is not simply a technical one which may be relaxed at the pleasure of the court, for its object is to secure certainty and to prevent disputes and a waste of the time of the court. It is no hardship to require parties to comply with the rule, and to have their records in form and substance correct and properly certified. The rule that, where a determination of the appeal depends on an issue of fact, the bill of exceptions or settled case must show affirmatively that the evidence relating to the issue is incorporated therein has been uniformly and with some strictness enforced in this court. If the bill or case contains no statement to the effect that all the evidence is incorporated therein, and the trial judge does not so certify,...
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