Brynjolfson v. TP

• Decision Date: 09 November 1898
• Citation: 77 N.W. 284,8 N.D. 106
• Parties: BRYNJOLFSON v. THINGVALLA TP.
• Court: North Dakota Supreme Court

8 N.D. 106

77 N.W. 284

BRYNJOLFSON

v.THINGVALLA TP.

Supreme Court of North Dakota.

Nov. 9, 1898.

Syllabus by the Court.

1. Construing section 5630, Rev. Codes: In this action no statement of the case was ever settled. In lieu of a statement, the trial judge transmitted to this court certain papers, to which he appends a certificate to the effect that the same embrace all the evidence and proceedings had at the trial upon which the findings were made. A motion in behalf of the respondent to strike out all of the record sent to this court, except the pleadings, findings, and judgment, was granted. A mere rescript of the evidence and proceedings as preserved by the reporter does not constitute a statement of the case, and will not be so regarded in this court.

2. Certain assignments of error subjoined to the appellant's brief considered, and held to be insufficient, under rule 12 of the rules of this court. 74 N. W. viii.

Appeal from district court, Pembina county; O. E. Sauter, Judge.

Action by Magnus Brynjolfson against the township of Thingvalla. From a judgment for plaintiff, defendant appeals. Affirmed.W. R. Garrett, for appellant. W. J. Kneeshaw and Cochrane & Corliss, for respondent.

WALLIN, J.

This action originated in a justice's court, and was brought to recover the sum of $50, which plaintiff claims to be due him for services rendered as an attorney at law. The action was removed to the district court by appeal, and was there tried to the court without a jury in April, 1896, and is therefore governed by the provisions of section 5630, Rev. Codes. The trial court, after the production of the evidence, made and filed its findings of fact and conclusions of law; and, pursuant thereto, judgment was entered in the district court in favor of the plaintiff for the amount sued for, with costs. Whereupon the defendant appealed from said judgment to this court.

When the case was reached in this court a preliminary motion was made by the respondent's counsel to strike out the entire record, except the statutory roll, to wit: “Except the summons, complaint, answer, findings of fact and conclusions of law, and the judgment.” This motion was based upon the conceded fact that no statement of the case has ever been settled or allowed in this action. At the same time a motion was made in respondent's behalf to strike from the printed abstract on file all the matter sought to be stricken from the record by said first motion, and also certain matter printed in the abstract, and denominated “specifications of errors.” An inspection of the record discloses that no statement of the case is contained therein, and with respect thereto the trial court certifies as follows: “That the foregoing transcript is hereby settled and allowed, and transmitted in lieu of a statement of the case, on account of the brevity of the testimony.” The testimony and exhibits together, it appears, constitute all the evidence and proceedings in the case had and taken in the district court. Said motion to strike out a part of therecord was granted, and it followed that corresponding parts in the abstract of the record must disappear and be stricken out also. Under section 5630 of the Revised Codes, it is incumbent upon an appellant who desires to review the evidence in this court to frame the settlement of a statement of the case, embracing the evidence in a narrative form, and including...