F. A. Patrick & Co. v. Nurnberg

Citation131 N.W. 254,21 N.D. 377
CourtNorth Dakota Supreme Court
Decision Date05 May 1911

21 N.D. 377
131 N.W. 254


Supreme Court of North Dakota.

April 7, 1911.
Rehearing Denied May 5, 1911.

Syllabus by the Court.

Where no motion for new trial is made, the sufficiency of the evidence to sustain a verdict cannot be reviewed.

Where no specification of error is incorporated in the statement on appeal, the statement will be disregarded.

Where no motion for new trial was made and no specification of error incorporated in the settled statement of the case, this court disregards the statement settled, and will not review the evidence or rulings thereon during the trial, and reviews only the errors apparent from the judgment roll.

A motion to suppress a deposition on the ground that the certificate thereto does not state that the deposition was reduced to writing or name the person reducing it to typewriting should be denied, in the absence of some showing of prejudice in support of the motion.

A presumption in favor of regularity of taking deposition and proper performance of duty by the officer taking same applies in the absence of proof to the contrary; and the burden to rebut such presumption is upon the party seeking to suppress the deposition.

In the absence of proof, it will be presumed the officer taking the deposition or the witness testifying by deposition reduced the same to writing, and the testimony may be examined to supplement the officer's certificate in such respects.

Appeal from District Court, Stutsman County; Burke, Judge.

Action by F. A. Patrick & Co. against Herman Nurnberg. Judgment for plaintiff, and defendant appeals. Affirmed.

[131 N.W. 254]

John U. Hemmi, for appellant. Oscar J. Seiler and A. W. Aylmer, for respondent.


Defendant appeals from a judgment rendered against him in the district court of Stutsman county. This action is for money only, brought for goods sold and delivered, and was tried to a jury.

[1][2][3] No motion for new trial as required by section 7226 of the Revised Statutes of North Dakota for 1905 was ever made or brought on for hearing, and therefore the sufficiency of the evidence to support the verdict cannot be inquired into. Nor was any specification of error embodied in or settled as a part of the statement of the case as provided by section 7058, Revised Codes N. D. 1905, and the statement should be wholly disregarded. Consequently there is but little before this court for review, as the errors urged are to matters occurring during the trial in the admission of testimony, no error based on the judgment roll

[131 N.W. 255]

being alleged. Jackson v. Ellerson, 15 N. D. 533, 108 N. W. 241;Bertelson v. Ehr, 17 N. D. 339, 116 N. W. 335;Landis Mach. Co. v. Konautz Co., 17 N. D. 310, 116 N. W. 333;Hedderich v. Hedderich, 123 N. W. 276.

[4] However, as the error complained of consists of the court's refusal to suppress a deposition, we will pass upon that matter. Appellant questions the sufficiency of the certificate of the notary authenticating the deposition. Our statute (sections 7284, 7285) regulates the authentication and certification of depositions. The deposition in question was taken pursuant to legal and sufficient written notice and at the time and place designated in the notice, and was subscribed by the witness in the presence of the officer certifying thereto, after the witness was duly sworn to testify the truth, all of which appears from the certificate of the notary taking such deposition. But such certificate omits to certify that the deposition was...

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