O'Dell v. Hiney

• Decision Date: 31 October 1922
• Citation: 49 N.D. 160,190 N.W. 774
• Parties: O'DELL v. HINEY.
• Court: North Dakota Supreme Court

49 N.D. 160

190 N.W. 774

O'DELL

v.HINEY.

Supreme Court of North Dakota.

Oct. 31, 1922.

Syllabus by the Court.

Where a party moves for a new trial, he must present all grounds which he claims entitle him to a new trial. In other words, he cannot present one ground in the trial court, and another ground in the appellate court.

A party who assails the rulings of a trial court in the admission or exclusion of evidence either by motion for a new trial or on appeal must specify the particular ruling or rulings which are claimed to be erroneous.

Appeal from District Court, Ward County; Lowe, Judge.

Action by Allen O'Dell against Henry Hiney. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.Funke, Campbell & Eide, of Minot, for appellant.

O. B. Herigstad, of Minot, for respondent.

CHRISTIANSON, J.

This action was in claim and delivery for the possession of two heifers, 53 chickens, 11 turkeys, and 6 ducks. The case was tried to a jury. The plaintiff prevailed. Defendant moved for a new trial. The motion was denied, and defendant appealed. The facts necessary to an understanding of the case are as follows: The plaintiff is the owner of a farm situated in Ward county. On or about October 1, 1919, he entered into a written lease with the defendant Hiney, whereby such farm was leased to Hiney for a term of three years. The lease provided that the plaintiff should furnish to the defendant certain ducks, turkkeys, and chickens, and that the defendant should take care of them and get one-half of the increase thereof. The defendant entered upon the premises in accordance with the conditions of the lease and received the turkeys, chickens, and ducks into his possession. Subsequently, and on or about October 30, 1919, the plaintiff purchased the two heifers involved in this controversy, and the same were delivered to the defendant on the farm. On or about January 19, 1920, defendant left the farm and took with him the personal property in controversy. On or about April 1, 1920, the plaintiff demanded of the defendant that he return to the farm and take the personal property back there, or that he surrender the same to the plaintiff. The demand was refused on the sole ground that the defendant had a feed bill against the heifers, and that he would not surrender possession of the personal property in controversy unless and until such feed bill was paid. The plaintiff refused to pay the feed bill and brought this action.

On the oral argument it was conceded that the judgment is right in so far as it relates to the turkeys, ducks, and chickens, that is, in so far as it relates to the property covered by the farm lease. It is contended, however, that, in so far as the heifers are concerned, the judgment is erroneous and should be set aside. Upon the trial plaintiff contended that he purchased the heifers and turned them over to the defendant under an agreement with the defendant that he was to keep and care for them under substantially the same conditions as those agreed upon with respect to the turkeys, ducks and chickens. This was specifically denied by the defendant, who claimed that there was no agreement whatever with respect to the heifers, that he merely received the same and kept them for the plaintiff, and that consequently he was entitled to compensation for feeding and caring for them. It will be noted that these contentions are in conflict. It plaintiff's contention is correct, the right to possession of the heifers would stand precisely upon the same basis as the right to possession of the turkeys,ducks, and chickens; whereas, according to the contention of the defendant, the right to possession of the heifers stood upon a wholly different ground from that of the right to possession of the turkeys, ducks, and chickens. The issues as thus framed were submitted to a jury, which, as already stated, returned a verdict in favor of the plaintiff.

Upon this appeal it is contended that the judgment should be set aside and a new trial ordered for two reasons: (1) Because the evidence is insufficient to justify the verdict; and (2) because the court erred in excluding certain evidence offered by the defendant tending to show that he left plaintiff's farm in January, 1920, for the reason that the well on the place did not furnish sufficient water.

[1] In our opinion neither of the contentions can be sustained. As already stated, defendant moved for a new trial. The laws of this state enumerate seven causes for new trials in civil actions, among which are the following:

“* * * 6. Insufficiency of the evidence to justify the verdict. * * * 7. Error in law occurring at the trial and excepted to by the party making the application.” Chapter 131, Laws 1921.

And they provide that-

“A party desiring to make a motion for new trial * * * shall serve with the notice of motion * * * 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 that character that the verdict should be set aside as a matter of discretion, he shall so specify.” Section 7656, C. L. 1913.

In this case the defendant did not challenge the sufficiency of the evidence in his motion for a new trial. The only ground specified in the motion for a new trial was that the court erred in refusing to permit the defendant to show that it was necessary for him to remove the heifers in controversy because of the insufficient water supply on the O'Dell farm. It would seem clear therefore that on this appeal the plaintiff would be limited to a review of the grounds presented to the trial court. In other words, having moved for a new trial he was required to present to the district court all reasons why a new trial...