Chaffee Bros. Co. v. Powers Elevator Co.

• Decision Date: 30 November 1918
• Citation: 170 N.W. 315,41 N.D. 94
• Parties: CHAFFEE BROS. CO. v. POWERS ELEVATOR CO.
• Court: North Dakota Supreme Court

41 N.D. 94

170 N.W. 315

CHAFFEE BROS. CO.

v.POWERS ELEVATOR CO.

Supreme Court of North Dakota.

Nov. 30, 1918.

Syllabus by the Court.

Where a party invites, and in effect consents to, a ruling, he is ordinarily estopped from asserting that the ruling was prejudicial.

An order denying a new trial entered subsequent to the judgment cannot be reviewed on an appeal from the judgment.

Appeal from District Court, Foster County; Coffey, Judge.

Action for conversion by Chaffee Brothers Company against Powers Elevator Company. Judgment for defendant upon a directed verdict, motion for new trial denied, and from the judgment plaintiff appeals. Affirmed.

Robinson, J., dissenting.

T. F. McCue, of Carrington, for appellant.

S. E. Ellsworth, of Jamestown, for respondent.

CHRISTIANSON, J.

This action was brought to recover damages for the alleged conversion of a crop of wheat upon which plaintiff claims a lien by virtue of a chattel mortgage given to him by one Klemstein. The defendant, in its answer, denied all the averments of the complaint. The case was tried to a jury. At the close of the entire testimony, defendant moved for a directed verdict. The plaintiff's attorney did not resist the motion, but conceded that the motion ought to be granted, and in effect consented to a direction of verdict in defendant's favor. The record shows that the following colloquy took place after defendant had moved for a directed verdict:

“Mr. Purdy (defendant's attorney): I understand that plaintiff concedes at this time that the defendant is entitled to a directed verdict. At this time the defendant moves the court to direct a verdict in favor of the defendant.

Mr. McCue (plaintiff's attorney): I can't see any other way out of it, Judge.

The Court: The motion is allowed.

Mr. McCue (plaintiff's attorney): I have done all I could, and there is nothing there.

The Court: Gentlemen of the jury, under the record as it now stands, the motion for a directed verdict, made by defendant, is allowed. The plaintiff does not resist the motion in any way, but in order to make the record complete, I will ask this first gentleman to sign the verdict as foreman of the jury. (After the verdict was signed by the foreman and read by the court.) The clerk may file the verdict, so you may be excused.”

Judgment was entered pursuant to the verdict on March 9, 1917. On March 28, 1917, the plaintiff gave notice of a motion for a new trial. The motion came on for hearing on April 12, 1917, and, after hearing, the court denied the same, for the avowed reasons that the plaintiff had, to all intents and purposes, agreed to a directed verdict in favor of defendant, and that in any event the plaintiff had failed to show the amount of wheat sold to the elevator company and the price thereof, so that there was no evidence from which the jury could ascertain the amount of the liability of defendant, if any. Notice of entry of the order denying a new trial was served on plaintiff's counsel on April 16, 1917. No appeal was taken from the order denying a new trial. But on August 3, 1917, plaintiff appealed from the judgment. No mention is made on this appeal of the motion for a new trial, and no error is attempted to be predicated on the denial of such motion. The only error assigned on this appeal is that the court erred in sustaining the defendant's motion for a directed verdict, and in entering judgment in favor of defendant for a dismissal of plaintiff's action.

[1] It seems clear that upon this record the judgment appealed from should be affirmed. The record (which we have quoted) clearly shows that the plaintiff expressly invited, and in effect consented to, the ruling which the court made upon the motion for a directed verdict. The judgment subsequently entered followed as a matter of course. It is axiomatic that “he who consents to an act is not wronged by it,” and that “acquiescence in error takes away the right of objecting to it.” Sections 7249, 7250, Compiled Laws 1913.

[2] Whether the court should have granted a new trial is not before us, for no appeal has been taken from the order denying a new trial. The remedies afforded by an appeal from a judgment and an appeal from an order denying a new trial are independent remedies. King v. Hanson, 13 N. D. 85, 99 N. W. 1085. And it is well settled that an order denying a new trial, entered subsequent to the judgment, cannot be reviewed on an appeal from the judgment. Paulsen v. Modern Woodmen of America, 21 N. D. 235, 130 N. W. 231;Heald v. Strong, 24 N. D. 120, 138 N. W. 1114;Shockman v. Ruthruff, 28 N. D. 597, 149 N. W. 680. See, also, 4 C. J. 684.

It follows from what has been said that the judgment appealed from must be affirmed. It is so ordered.

GRACE, J., concurs in result.

ROBINSON, J. (dissenting).

The plaintiff sued to recover $320 for the conversion of property on which it held a mortgage lien, and it appeals from a judgment against it on a directed verdict. The complaint avers that in September, 1912, to secure $320, Klemstein made to it a chattel mortgage on his undivided half interest in crops to be grown during the year 1913 on a certain quarter section of land (S. W. 1/4 9-144-66); that said mortgage was duly filed in the office of the proper register of deeds, and due notice thereof given to defendant; that during the year 1913, the mortgagor raised on said land 840 bushels of wheat, which defendant received at...