Feil v. Nw. German Farmers' Mut. Ins. Co.

• Decision Date: 08 October 1914
• Citation: 149 N.W. 358,28 N.D. 355
• Parties: FEIL v. NORTHWEST GERMAN FARMERS' MUT. INS. CO.
• Court: North Dakota Supreme Court

28 N.D. 355

149 N.W. 358

FEIL

v.NORTHWEST GERMAN FARMERS' MUT. INS. CO.

Supreme Court of North Dakota.

Oct. 8, 1914.

Syllabus by the Court.

Section 4, c. 131, Laws 1913, known as the New Practice Act, requires that a specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient. Such statutory rule is a reasonable one, designed to inform the court and respondent's counsel of the particulars relied on as to the alleged insufficiency, and a substantial compliance therewith will be exacted. Appellant's specifications in this case examined and held not a substantial compliance with such statute.

On an appeal from a judgment, in an action on contract for the recovery of money only, which was tried to the court, a jury having been waived, the findings are entitled to the weight of a special verdict, and will not be disturbed, where, as in this case, they have substantial support in the testimony.

Appeal from District Court, McIntosh County; Allen, Judge.

Action by Freidrich Feil against the Northwest German Farmers' Mutual Insurance Company, a corporation. From judgment for plaintiff, defendant appeals. Affirmed.Curtis & Curtis, of Lisbon, for appellant. Geo. M. Gannon, of Ashley, and W. S. Lauder, of Wahpeton, for respondent.

FISK, J.

[1] Action to recover on a fire insurance policy. Such policy contains the usual stipulation that:

“This policy shall be void * * * if the insured now has or shall hereafter obtain any other insurance on said property without the assent of the company,” etc.

There was other insurance on the property, and the defense is that the policy is void because such other insurance was not assented to by the defendant company. This issue was by consent tried to the court; a jury having been waived. Such trial resulted in findings and conclusions favorable to plaintiff, and judgment in accordance therewith was given and entered in his favor for the sum demanded in the complaint. From this judgment defendant has appealed to this court, urging, as the only grounds for a reversal, the following so-called specifications of error: (1) The evidence is insufficient to sustain the decision. (2) The decision is not sustained by the weight of the evidence. It needs no argument to demonstrate that such specifications are wholly inadequate and unavailing. The controlling statute (section 4, c. 131, Laws 1913) expressly provides that:

“A specification of insufficiency of the evidence to sustain the verdict or decision of the court shall...