Farmers' And Merchants' National Bank v. Davis

• Decision Date: 20 October 1898
• Citation: 76 N.W. 998,8 N.D. 83
• Court: North Dakota Supreme Court

76 N.W. 998

8 N.D. 83

FARMERS' AND MERCHANTS' NATIONAL BANK v. CHESTER H. DAVIS

Supreme Court of North Dakota

October 20, 1898

Appeal from District Court, Barnes County; Glaspell, J.

Action by the Farmers' & Merchants' National Bank of Valley City against Chester H. Davis to quiet title. From a judgment for defendant dismissing the action, plaintiff appeals.

Affirmed.

Herbert Root, for appellant.

Winterer & Winterer, for respondent.

OPINION

WALLIN, J.

This action was brought to quiet title to certain real estate, and was tried below by the Court. The relief prayed for was denied, and a judgment was entered dismissing the action. The plaintiff has appealed from such judgment to this Court, and desires a trial anew of the entire case. The trial and the appeal are governed by section 5630 of the Revised Codes, as amended by the act embraced in chapter 5 of the Session Laws of 1897. A bill of exception or statement was settled by the trial judge, pursuant to a stipulation made by counsel, which is as follows: Stipulation. "It is hereby stipulated and agreed, by and between the respective counsel for the plaintiff and the defendant in the above entitled cause, that the record hereto attached contains in itself all the bill of exceptions, and a true statement of the evidence in the case as by section 5467 of the Code of Civil Procedure required and that the exceptions appearing therein were made within due time, and within that allowed by the Court, and that the said foregoing attached statement of the case is hereby to be and become and is hereby attached to the record in said cause, and made a part thereof, to be allowed in the argument of it before the Supreme Court of the State of North Dakota. Dated August 23rd, 1898. Herbert Root, Attorney for Plaintiff. Winterer & Winterer, Attorneys for Defendant." To which stipulation the trial court appended the following certificate: "The foregoing statement of the case is settled and allowed, this 25th day of August, A. D. 1898. S. L. Glaspell, Judge."

It will be observed that the judge's certificate, standing alone contains no allusion to the evidence offered at the trial, and hence omits to state whether the whole or any part of the evidence offered below is contained in the record transmitted to this Court. We regard this omission as fatal. In sitting as a Court for the retrial of issues of fact, this Court can consider only evidence "offered at the trial." Such evidence, therefore, must be officially certified to this Court by the Court below, and must be embraced within the statement of the case sent here. This Court cannot be required to retry any case under this statute upon a statement of the case which embraces only an abridgment of the evidence as vouched for by agreement of counsel, and which is devoid of any certification of the Court below other than the mere declaration that an agreed statement is "settled and allowed." Upon this point, we cite what was said by this Court in Thuet v. Strong, 7 N.D. 565, 75 N.W. 922. Nor does the stipulation so settled and allowed as a statement contain the statement which the law requires. The stipulation does not declare that the evidence offered at the trial is all embraced in the statement; nor that the evidence offered bearing upon any specified facts is contained in the statement. So far as the stipulation refers to the evidence, it states that the record embraces "a true statement of the evidence in the case, as by section 5467 of the Code of Civil Procedure required." Section 5467, supra, declares as follows: "The objection must be stated with so much of the evidence or other matter as is necessary to explain it, and no more." It therefore appears from the language of the stipulation of counsel, when fairly construed, that all the evidence offered at the trial is not embraced in this record, and that it contains only so much thereof as relates to certain objections. There are no errors specified in the statement of the case, nor is there an attempt made therein to specify wherein the findings of fact made below, or any of them, are not justified by the evidence. These omissions are, however, explained by counsel for the appellant, by stating that, in his judgment, no such specifications are required, under the amendment found in chapter 5 of the Laws of 1897. As will be seen hereafter, we agree with counsel upon this point; but this construction cannot do away with the necessity of an official certificate made by the trial court, to the effect that the evidence offered at the trial is all contained in the record, or that all thereof which relates to certain specified questions of fact is contained in the record. See chapter 5, Laws 1897.

In this case, counsel for appellant has, in lieu of the specifications required by section 5467 of the Revised Codes appended to the stipulated case a declaration signed by him, to the effect that appellant "desires a review of the entire case in the Supreme Court;" also, that he desires to review certain of the findings of fact made by the District Court which he refers to by their numbers only; and, further, that he desires this Court "to make such findings of fact as would establish all the material allegations of the complaint," these last not being otherwise described or specified. This declaration of counsel clearly states that the appellant desires a retrial in this court of the entire case. As has been seen, this cannot be accorded to the appellant, for the reason that it does not appear that all of the evidence is certified to this Court, and it does appear affirmatively that only a version of the evidence offered at the trial is embraced in the statement of the case. This omission in the record precludes a trial of the entire case de novo in this Court, and renders an affirmance of the judgment necessary, and such will be the disposition made of the case; but, inasmuch as this is the first case coming before this Court in which we have been directly called upon to construe the amended act found in chapter 5 of the Session Laws of 1897, we deem it proper to call attention to the more...