Erickson v. Citizen's Nat. Bank

• Decision Date: 14 November 1899
• Parties: ERICKSON et al. v. CITIZENS' NAT. BANK.
• Court: North Dakota Supreme Court

9 N.D. 81

81 N.W. 46

ERICKSON et al.

v.CITIZENS' NAT. BANK.

Supreme Court of North Dakota.

Nov. 14, 1899.

Syllabus by the Court.

1. This is an action to recover money only. A jury was sworn, and after all the evidence had been submitted, and the case was rested on both sides, the defendant requested the trial court to direct a verdict in his favor. This was denied, and defendant excepted to the ruling. The plaintiffs then requested a directed verdict in their favor. The trial court, without ruling on plaintiffs' request, discharged the jury. The court subsequently made findings of fact and law, and judgment was entered in plaintiffs' favor, from which the defendant appeals to this court. No exception was taken to the discharge of the jury, and no error is assigned in this court based on such discharge. Held, that counsel have waived a jury trial, and consented by their silence to a trial by the court, and hence that the trial and appeal must be governed by chapter 5 of the Laws of 1897.

2. The statement of the case embodies specifications of alleged errors of law arising upon rulings of the court below upon the admission of testimony, and also a specification based upon the refusal of the trial court to direct a verdict in defendant's favor. The statement further embraced specifications of particulars wherein the appellant claims that the respective findings of fact are not justified by the evidence. But the statement of the case contains no declaration, as required by said act of 1897, to the effect that the appellant desires a review of the entire case in the supreme court; nor does the statement embrace a specification of any fact or facts which appellant desires this court to review. Held that, by reason of said omissions in the statement of the case, this court cannot retry either the entire case, or any particular fact in the case, de novo. Held, further, that in such cases this court does not sit as a court of review, to correct errors arising upon rulings of the district court upon the admission of evidence. Such rulings will only be passed upon in connection with a retrial in this court. Nichols & Shepard Co. v. Stangler, 72 N. W. 1089, 7 N. D. 102, followed.

3. Held, further, that said specification of particulars in which defendant claims that the findings of fact are without support in the evidence are superfluous, under said statute, and confer no authority upon this court to retry the case, or any fact in the case, anew. Such specifications appertain to jury cases, but not to cases tried to the court. Bank v. Davis, 76 N. W. 998, 8 N. D. 83, followed.

4. Held, further, that the refusal of the trial court to direct a verdict in defendant's favor, if error, was waived by counsel in consenting to the discharge of the jury and to a trial before the court.

5. The appellant's abstract stated, in general terms, that defendant appealed from the judgment of the district court to this court, and contained a copy of such judgment, but omitted to state, as required by rule 13 of the amended rules of this court (74 N. W. viii.), that such appeal was taken by serving and filing a notice of appeal and supersedeas bond. A motion to dismiss the appeal on the ground that the abstract failed to show on its face that an appeal to this court had been perfected was made in this court, and was denied. The abstract was faulty, for the reasons stated; but, in questions affecting the jurisdiction of this court, we shall, when necessary, explore the record proper. In this case no claim is made that the appeal itself was irregular.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Action by Michael Erickson and Jacob Erickson against the Citizens' National Bank. Judgment for plaintiffs, and defendant appeals. Affirmed.

McCumber & Bogart, for appellant. Freerks & Freerks, for respondents.

WALLIN, J.

This is an action at law for the recovery of money, in which an issue of fact was joined. At the trial a jury was sworn, and the evidence of the plaintiffs was submitted in the presence of the jury, whereupon the plaintiffs rested their case. The defendant, by its counsel, then requested the trial court to direct a verdict in defendant's favor. This motion was denied, and defendant, by its counsel, took exception to such ruling. After the defendant had rested its case, another motion for a directed verdict was made in defendant's behalf, upon certain grounds. This motion was also denied, and the defendant saved an exception to the ruling, whereupon the plaintiffs, by their counsel, requested the court to instruct the jury to return a verdict for the plaintiffs. So far as shown by the abstract filed in this court, there was no ruling made in the district court upon plaintiffs' motion for a directed verdict. The statement next appearing in the abstract is as follows: “The court then discharged the jury.” It also appears that the trial court thereafter filed its findings in the case, embracing 13 findings of fact and 2 conclusions of law, and pursuant to which a judgment for $416 was entered in plaintiffs' favor. Counsel for defendant has attacked each of the findings of fact, except the first, and has caused to be incorporated in the statement of the case specifications, embracing particulars, in which each of said findings of fact is claimed to be unsupported by the evidence. The abstract further contains numerous specifications of alleged errors of law which appertain to rulings made at the trial upon the admission of evidence; and to these are added specifications of error based upon the rulings of the trial court before referred to, and whereby that court denied the defendant's request for a directed verdict. Finally the defendant's counsel adverts to the fact that the trial court dismissed the jury, and specifies such action as error. All or nearly all of said specifications of error are assigned as error in the brief of appellant's counsel filed in this court, but counsel omit to assign error predicated upon the dismissal of the jury. In this court, counsel for the respondents has made a preliminary motion to dismiss the appeal, and bases the same upon the following statement in the appellant's abstract: “On the 20th day of April, 1899, appeal was taken from said judgment by said defendant to the supreme court of said state.” Counsel criticise this statement on the ground that it omits to state that the appellant served a notice of appeal, and thereafter filed such notice with the clerk. We cannot sustain the motion. It is not based upon an allegation or claim that no notice of appeal was ever served or filed; nor do counsel claim that the record proper does not show all details essential to taking an appeal, or in making the same effectual. Statements in the record should be abridged in the abstract, and we are of the opinion that the statement referred to sets forth the essential fact of an appeal from the judgment. The abstract should show the fact of appeal, and what the appeal is from,-whether from an order or a judgment. This abstract sets out the judgment, and shows that the appeal is taken from such judgment. It is faulty only in omitting to state the details as to giving the notice and the undertaking on appeal, as prescribed by rule 13 of the amended rules of practice (74 N. W. viii.). But this court has not declared by any rule that it will dismiss an appeal on the ground that the abstracts are faulty in some matter of detail only. Upon jurisdictional questions, this court, if compelled to do so, will explore the record to ascertain the truth. In this case we shall not have occasion to do so in deciding this motion, for the reason that no claim is made that the appeal was not regularly taken in all respects.

At the threshold of this case we are confronted with a novel question of procedure. What is the status of the case in this court, and, under the established procedure, what are the duties which this court is required to perform with reference to the case? Upon the record, are we to sit merely as a court of review for the correction of errors assigned in the brief of the appellant's counsel, or should we sit as a trial court, and retry the entire case de novo upon the facts and merits? As has been seen, the facts presented are anomalous; nor are the questions of practice we have suggested entirely clear, and easy of solution. We will first inquire whether we can try the case anew in this court. If we can, our authority to do so will be found in section 5630 of the Revised Codes, as amended by chapter 5 of the Session Laws of 1897. That section controls all cases tried in the district court without a jury in which an issue of fact is joined. An issue of fact was joined in this case. In cases...