Edmonson v. White
| Decision Date | 13 October 1898 |
| Citation | 76 N.W. 986,8 N.D. 72 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Bottineau County; Morgan, J.
Action by George Edmonson and Kate Edmonson against Thomas White, as sheriff of Bottineau County, and the First National Bank of Grand Forks, to enjoin and execution sale. From a judgment for plaintiff, defendants appeal.
Affirmed.
McDermont & Mayer, for appellants.
V. B Noble and E. A. Maglone, for respondents.
This action was brought to enjoin the sale of a certain tract of land claimed by the plaintiffs as their homestead, and which it is conceded is the land of the plaintiff George Edmonson. The defendant White, as sheriff, to satisfy a judgment against said George Edmonson in favor of said First National Bank, levied upon the land, and advertised to sell the same to satisfy said judgment. Issue being joined, the case was tried to the Court, and findings of fact and law were made and filed; whereupon judgment was entered in favor of the plaintiffs, granting the relief prayed for in the complaint.
Defendants challenge a number of the most important findings of fact filed by the trial court, and have incorporated in the record specifications stating wherein, as defendants claim, such findings are not justified by the evidence. Defendants have further excepted to certain conclusions of law filed by the Court upon the facts as found by the Court. The record further discloses that the defendants except to the refusal of the trial court to make and file certain findings of fact as proposed by the defendants. The action was tried by the Court in June, 1896, and hence is governed by section 5630 of the Revised Codes, which took effect January 1, 1896. That section requires: First, that "all the evidence offered at the trial shall be received;" second, that, where it is sought to have the evidence reviewed, a statement of the case may be settled in the manner pointed out in said section; third, "which statement shall contain in a narrative form without unnecessary repetition all the evidence offered at the trial." The last provision of the section is as follows: "The Supreme Court shall try the case anew and render final judgment therein according to the justice of the case." In reviewing the evidence this Court tries the case anew, but, inasmuch as our jurisdiction in this class of cases is purely appellate, the trial in this Court can be had anew only upon such evidence as may be found in the record sent up. We cannot take new testimony here for the purpose of trying the case anew, under this statute. See Christianson v Association, 5 N.D. 438, 67 N.W. 300. Under this section of the Code, an appellant who seeks to have the testimony reviewed in this Court is required, not only to embody in the record the testimony and reduce it to a narrative form, but it is further especially required that the statement of the case shall contain "all the evidence offered at the trial." The obvious purpose of this section, as well as that which it amends, is to place before this Court all the evidence offered below, and then to require this Court to try the case upon such evidence and the whole thereof. The fact that an item of evidence offered below was incompetent or inadmissible for any reason, and hence was not considered in the trial court, cannot operate to exclude such item from the statement. The plain language of section 5630 precludes such a construction of the law.
These preliminary observations lead up to a point which, in our judgment, must dispose of the case. In this Court the respondents call our attention to the certificate of the trial court, and take the position that, on account of defects in such certificate, this Court is without authority to try the case anew, under the evidence in the record. The judge's certificate appended to the record, excluding its immaterial recitals, is as follows: "I...
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