Braun v. Riskedahl

Decision Date27 April 1967
Docket NumberNo. 8338,8338
Citation150 N.W.2d 577
PartiesMike M. BRAUN, Jr., Plaintiff and Appellant, v. Alfred RISKEDAHL, Defendant and Respondent.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. In order to take an appeal to the Supreme Court from a judgment of the district court, it is essential that the notice of appeal be served upon the adverse party within the time limited by law for the taking of an appeal.

2. The remedy afforded by an appeal from a judgment and the remedy by appeal from an order denying a new trial are independent remedies, and the right to appeal from an order denying a motion for a new trial may be exercised after the time for appealing from the judgment had expired, provided the appeal is taken within the time limited by statute by appealing from such order.

3. Under Section 28--18--09, N.D.C.C., a motion for a new trial on the ground of insufficiency of the evidence to sustain the verdict presents no question as to whether the evidence is sufficient or insufficient to sustain the verdict unless the moving party presents with, and as a part of, its motion for a new trial specifications of insufficiency of the evidence.

4. On an appeal to the Supreme Court the appellant has the burden of presenting a record affirmatively showing error.

5. The sufficiency of the evidence is not reviewable on appeal from an order denying a new trial unless such sufficiency was challenged in the trial court in the manner prescribed by law.

6. Whether a motion for a new trial shall be granted on the ground of insufficiency of the evidence to sustain the verdict lies in the sound judicial discretion of the trial court, and its decision will not be set aside on appeal unless there has been a manifest abuse of discretion.

7. Where a party to an action has knowledge of misconduct of a jury, and does not avail himself of it at the earliest opportunity, he is deemed to have waived his right to urge such misconduct as a ground for a new trial.

8. Ordinarily, where a party wishes to take advantage of irregularities occurring during the course of a trial, either on the part of the court, the jury, the parties, or anyone acting for or on their behalf, he must do so at the time they occur, to the end that the court may take appropriate action, if possible, to remedy any prejudice that may have resulted.

9. The trial court did not abuse its discretion in denying a new trial on the ground of misconduct of jurors under the facts in this case.

Gordon O. Hoberg, Napoleon, for plaintiff and appellant, on appeal.

Hjellum, Weiss, Nerison & Jukkala, Jamestown, for defendant and respondent.

TEIGEN, Chief Justice.

The plaintiff has appealed from an adverse judgment and an order denying new trial in an action for damages for personal injuries and property damage sustained when his vehicle was rear-ended by defendant's vehicle. The defendant counterclaimed for personal injuries and damages to his vehicle. The jury returned a verdict dismissing the plaintiff's complaint and the defendant's counterclaim.

At the threshold we are met with defendant's motion to dismiss the appeal from the judgment on the ground that the plaintiff failed to timely take his appeal. The judgment was entered on December 7, 1962, and notice of entry of judgment was served on December 11, 1962. The notice of appeal was not served until October 7, 1965, nor filed in the office of the clerk of the district court until October 8, 1965. Section 28--27--04, N.D.C.C., provides that an appeal from a judgment must be taken within six months after written notice of entry thereof has been given. This statute is mandatory and jurisdictional. Gunsch v. Boehler, N.D., 91 N.W.2d 343; Nevland v. Njust, 78 N.D. 747, 51 N.W.2d 845; Stierlen v. Stierlen, 8 N.D. 297, 78 N.W. 990. More than six months expired from the notice of entry of judgment and the serving and filing of the notice of appeal from the judgment. This was fatal to the appeal from the judgment. No jurisdiction was conferred upon this Court, and the appeal from the judgment is therefore ordered dismissed.

The plaintiff has also appealed from the order denying a new trial. A dismissal of the appeal from the judgment does not affect the appeal from the order denying a new trial. Under the statutes of this State, the remedies afforded by an appeal from a judgment and an appeal from an order denying a new trial are independent remedies. The right to appeal from an order denying a motion for new trial may be exercised after the time for appealing from the judgment has expired, provided the appeal is taken within the time limited by statute for appealing from such orders. Nevland v. Njust, supra; King v. Hanson, 13 N.D. 85, 99 N.W. 1085.

An examination of the record discloses that the appeal from the order denying new trial was timely taken. The order was rendered on August 26, 1965, and the notice of appeal was served on October 7, 1965 and filed in the office of the clerk of the district court, together with proof of service and undertaking, on October 8, 1965. Section 28--27--04, N.D.C.C., provides that an appeal from an order may be taken within sixty days after written notice of the same shall have been given to the party appealing.

Plaintiff moved for a new trial upon two grounds: (1) that the evidence is insufficient to support the verdict, and (2) prejudicial misconduct by jurors in that at least two of them consumed intoxicating liquor and were under the influence thereof during the trial.

The first ground of plaintiff's motion for a new trial is the alleged insufficiency of the evidence to justify the verdict. This ground is provided for by Rule 59(b)(6), N.D.R.Civ.P. However, the plaintiff failed to point out wherein the evidence is insufficient as required by Section 28--18--09, N.D.C.C. This section provides:

Specifications of errors and insufficiency of the evidence.--A party desiring to make a motion for a new trial or to appeal from a judgment or other determination of a district court or county court with increased jurisdiction, except upon appeals triable de novo in the supreme court, shall serve with the notice of motion, or 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 or that the evidence is of such character that the verdict should be set aside as a matter of discretion, he shall so specify. A specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient and it shall be proper to include in such specification, specifications of facts conclusively established, together with the facts claimed not to be established, in such manner as to show intelligibly wherein, on the whole case, the verdict or decision is not supported by the evidence. (Emphasis supplied.)

In Nevland v. Njust, supra, this court said:

Under this statute a motion for a new trial presents no question as to whether the evidence is sufficient or insufficient to sustain the verdict unless the moving party presents with, and as a part of, his motion for a new trial the specifications of insufficiency of the evidence prescribed by the statute. Feil v. Northwestern German Farmers Mut. Ins. Co., 28 N.D. 355, 357, 149 N.W. 358; Cary Mfg. Co. v. Ferch, 67 N.D. 603, 275 N.W. 255; Haslam v. Babcock, 71 N.D. 363, 1 N.W.2d 335; Enget v. Neff, 77 N.D. 356, 43 N.W.2d 644, 646.

The rule is further supported by these later cases: Mills v. Roggensack, N.D., 92 N.W.2d 722; Robbins v. Robbins, N.D., 70 N.W.2d 37; Jacobs v. Bever, 79 N.D. 168, 55 N.W.2d 512; Mann v. Policyholders' National Life Ins. Co., 78 N.D. 724, 51 N.W.2d 853.

The plaintiff served and filed specifications of error for the first time with his notice of appeal to this Court, in which an attempt is made to point out wherein the evidence is insufficient. However, neither in these specifications nor in his brief has he specified the particulars wherein it is insufficient. He merely states:

1. That the evidence conclusively establishes that the Plaintiff, Mike M. Braun, Jr., was free from contributory negligence and any wrongful misconduct.

2. That the evidence conclusively establishes the proximate cause of the accident which produced the injuries and damage to the plaintiff was not the negligence or misconduct of the Plaintiff, Mike M. Braun, Jr., but was the conduct of the Defendant, Alfred Riskedahl.

3. That there was no evidence of contributory negligence upon the part of Plaintiff, Mike M. Braun, Jr., as shown by the Jury when they dismissed the counterclaim of the Defendant, Alfred Riskedahl.

These specifications would require this Court, if we cound consider them, to review all of the testimony and comb the record for evidence as to the three points mentioned in the specifications, and then determine whether that evidence was competent and sufficient to sustain the verdict. To do so would be to permit a trial de novo in a case tried to a jury. Montana-Dakota Utilities Company v. Culver, N.D., 80 N.W.2d 541, 544.

It may be argued that the motion for new trial having been submitted to the trial court, and having been passed upon without objection being made to the absence of specifications of error in that court, the defect has been waived, as was held in Clausen v. Miller, 63 N.D. 778, 249 N.W. 791. In that case we held that there was nothing to prevent the trial court from examining the evidence to determine whether the verdict is in accordance therewith and granting a new trial on the grounds of insufficiency of the evidence, although the moving party had failed to point out wherein the evidence was insufficient. In that case, however, this Court affirmed an order granting a new trial. In this case the situation is different; the trial court denied the motion for a new trial and it did not review the evidence as to any particulars. The trial court in its...

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13 cases
  • Andrews v. O'Hearn, 10837
    • United States
    • United States State Supreme Court of North Dakota
    • 7 Mayo 1986
    ...object acts as a waiver of the claim of error. See, e.g., Basin Elec. Power Co-op v. Paulson, 289 N.W.2d 548 (N.D.1980); Braun v. Riskedahl, 150 N.W.2d 577 (N.D.1967); Bradley v. Krogen, 67 N.D. 108, 270 N.W. 93 (1936); Kinneberg v. Kinneberg, 8 N.D. 311, 79 N.W. 337 (1899). As we stated in......
  • State v. Himmerick, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • 27 Abril 1993
    ...time on appeal. See State v. Hepper, 316 N.W.2d 338, 342 (N.D.1982); State v. Garvey, 283 N.W.2d 153, 158 (N.D.1979); Braun v. Riskedahl, 150 N.W.2d 577, 581 (N.D.1967). More specifically, this Court has held "many times that it will not review the sufficiency of the evidence unless the mat......
  • Leake v. Hagert
    • United States
    • United States State Supreme Court of North Dakota
    • 25 Marzo 1970
    ...occur, in order that the court may take appropriate action, if possible, to remedy any prejudice that may have resulted. Braun v. Riskedahl, 150 N.W.2d 577 (N.D.1967). And when no objection is made at the time that a comment is made by the judge and no request is made for a curative instruc......
  • Glatt v. Bank of Kirkwood Plaza
    • United States
    • United States State Supreme Court of North Dakota
    • 3 Marzo 1986
    ...to the end that the court may take appropriate action if possible to remedy any prejudice that may have resulted." Braun v. Riskedahl, 150 N.W.2d 577, 583 (N.D.1967). See also Larson v. Meyer, 135 N.W.2d 145 (N.D.1965). The trial court's refusal to grant a motion for mistrial or to give a c......
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