Compson v. Olson, 7485
| Citation | 75 N.W.2d 319 |
| Decision Date | 17 February 1956 |
| Docket Number | No. 7485,7485 |
| Parties | Anna COMPSON, Plaintiff and Appellant, v. Ed. M. OLSON, Defendant and Respondent. |
| Court | United States State Supreme Court of North Dakota |
Syllabus by the Court.
1. Where a party fails to serve upon adverse parties notice of intention to apply to the district court for a settlement of the statement of the case for presentation to the supreme court upon appeal, as required by Section 28-1806, NDRC 1943, and there is no stipulation or waiver with respect thereto, there can be no settled statement of the case.
2. Where, upon an appeal, there is no settled statement of the case, review by the supreme court is limited to matters appearing upon the face of the judgment roll.
Wm. L. Paulson, Valley City, Philip L. Scherer, Winthrop, Minn., for appellant.
Nilles, Oehlert & Nilles, Fargo, and Roy A. Ployhar, Valley City, for respondent.
This is an appeal from an order denying a new trial of an action for damages alleged to have resulted from the negligent operation of a motor vehicle. The verdict of the jury and the judgment in the action were in favor of the defendant. The appeal is by the plaintiff.
Defendant has moved to dismiss the appeal upon the ground that there is no legally settled statement of the case before this court. Section 28-1806, NDRC 1943, provides specifically the manner in which the record in a case for presentation to the supreme court on appeal shall be prepared. Among other things it provides: '* * * the moving party must procure a transcript of the evidence and furnish a copy thereof to the adverse party with a notice that at a time not less than fifteen days nor more than thirty days after the service of such notice, he will present the same to the judge for certification as a correct transcript of the evidence and of all proceedings had and made a matter of record by the official reporter, and that, at the same time, he will ask the judge for a certificate identifying the exhibits and depositions in the case'. In this case a certification by the trial judge has been filed. It appears, however, that no notice that such certificate would be applied for by the plaintiff was ever served upon the defendant and that the defendant was therefore given no opportunity to apply for corrections and additions or to make any objections to the record presented to the judge by the plaintiff for certification.
The statute relating to such notice must be complied with or there is no authorized settlement of...
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...is limited in its review to matters appearing on the face of the judgment roll. Martin v. Rippel, 152 N.W.2d 332 (N.D.); Compson v. Olson, 75 N.W.2d 319 (N.D.); Brand v. Brand, 65 N.W.2d 457 (N.D.); Cary v. Kautzman, 78 N.D. 875, 53 N.W.2d 99; Isensee Motors v. Godfrey, 61 N.D. 435, 238 N.W......
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...sufficient to pass upon any errors appearing upon the face of the judgment roll. Cary v. Kautzman, 78 N.D. 875, 53 N.W.2d 99; Compson v. Olson, (N.D.) 75 N.W.2d 319. This record, by the impression of the clerk of court's filing stamp, shows that the notice of appeal was filed one day too la......