First Nat. Bank of Crary v. Bremseth

• Decision Date: 04 February 1931
• Docket Number: No. 5855.,5855.
• Citation: 234 N.W. 758,60 N.D. 401
• Parties: FIRST NAT. BANK OF CRARY v. BREMSETH.
• Court: North Dakota Supreme Court

60 N.D. 401

234 N.W. 758

FIRST NAT. BANK OF CRARY

v.BREMSETH.

No. 5855.

Supreme Court of North Dakota.

Feb. 4, 1931.

Syllabus by the Court.

Following Marquette Nat. Fire Ins. Co. v. McCutcheon, 54 N. D. 596, 211 N. W. 433, it is held, the Supreme Court has no jurisdiction to review or retry an action tried and appealed under section 7846, C. L. 1913, unless the entire judgment appealed from is before it for final disposition.

Syllabus by the Court.

In an appeal governed by the provisions of section 7656, C. L. 1913, the appellant has the burden of specifying and showing error, and the review on appeal is limited to the errors specified. Where no error is assigned, there is nothing for the appellate court to review.

Appeal from District Court, Ramsey County; Grimson, Judge.

Action by the First National Bank of Crary against Gilbert Bremseth to foreclose certain chattel mortgages. Defendant appeals from a part of the judgment.

Affirmed.

Lemke & Weaver, of Fargo, for appellant.

H. W. Swenson, of Devils Lake, for respondent.

PER CURIAM.

The plaintiff brought this action to foreclose three certain chattel mortgages executed and delivered to it by the defendant, Bremseth. The case was tried to the court without a jury, and resulted in findings and conclusions in favor of the plaintiff. Judgment was entered accordingly, and defendant appealed. In the notice of appeal it is stated that the defendant appeals “from that part of the judgment of said District Court entered herein, on the 14th day of August, 1929, which holds that the mortgages mentioned in said judgment are a valid and subsisting lien upon the following named horses: Topsy, Lillie, Flory, Pussy, May, Jennie, Tub and Pust; and which holds that said mortgages are a valid and subsisting lien upon the following farm machinery: 1 drag cart, 1 single cultivator, 1 double cultivator, 1 wide tire wagon and tank, 1 mower, 1 gang plow, 1 pump jack, 1 pair of sleighs, 1 drag, 2 trucks and racks, 1 truck gear, 4 sets of working harness with collars, 1 binder, 1 drill, 1 hay rake.”

The only specification of error served and filed with the notice of appeal is as follows: “The Court erred in finding that the mortgages here in question were a valid and subsisting lien upon the following described horses: Topsy, Lillie, Flory, Pussy, May, Jennie, Tub and Pust, and upon the following described farm machinery and harnesses: 1 drag cart, 1 single cultivator, 1 double cultivator, 1 wide tire wagon and tank, 1 mower, 1 gang plow, 1 pump jack, 1 pair of sleighs, 1 drag, 2 trucks and racks, 1 truck gear, 4 sets of working harness with collars, 1 binder, 1 drill, 1 hay rake; the plaintiff wholly failing to identify any of said horses or farm machinery or harnesses as being the property mortgaged. In fact the same was not covered by any of the mortgages here in question.”

[1] The respondent moved that the appeal be dismissed on the ground that an appeal from a part of a judgment does not lie under section 7846, Supplement to the Compiled Laws of 1913. The appellant resisted the motion, and asked leave to serve and file an amended notice of appeal. The proposed amendment sought to change the notice of appeal so as to recite that the appeal is taken from the whole of the judgment. Respondent resisted the proposed amendment, and contends that the court is without authority to permit such amendment at this time, for the reason that the time allowed by law for appeal from the judgment has expired.

Section 7846, Supplement to the Compiled Laws of 1913, reads as follows: “ On appeal in the supreme court in any action tried by the court, but without a jury, if it appear to the court that any material evidence was excluded, the court may issue a mandate to the trial court to take such evidence without delay and to certify and return it to the supreme court, and all proceedings in the supreme court shall be stayed pending the return of such evidence. A party desiring to appeal from a judgment in any such action, shall cause a statement of the case to be settled within the time and in the manner prescribed by article 8 of chapter 11 of the Compiled Laws of North Dakota for the year 1913, and shall specify therein the questions of fact that he desires the supreme court to review, and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court. Only such evidence as relates to the questions of fact to be reviewed shall be embodied in this statement. But if the appellant shall specify in the statement that he desires to review the entire case, all the evidence and proceedings shall be embodied in the statement. The supreme court shall try anew the question of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and either affirm or modify the judgment or direct a new judgment to be entered in the district court; the supreme court may, however, if it deem such course necessary to the accomplishment of justice, order a new trial of the action. In actions tried under the provisions of this section, failure of the court to make findings upon all the issues in the case shall not constitute a ground for granting a new trial or reversing the judgment; provided that the provisions of this section shall not apply to actions or proceedings properly triable with a jury.”

Legislation providing for a trial anew in the Supreme Court of actions tried by the district court without a jury was first enactedin 1893. Laws 1893, c. 82. The original act was amended in 1897. Laws 1897, c. 5. The legislation was embodied in section 7846 of the Compiled Laws of 1913. The latter statute was amended in 1919. Laws 1919, c. 8. The only changes made by the Legislative Assembly in 1919 were as follows: There was eliminated from section 7846, C. L. 1913, the two first sentences thereof which read as follows: “In all actions tried by the district court without a jury, in which an issue of fact has been joined, excepting as hereinafter provided, all the evidence offered on the trial shall be received. Either party may have his objections to evidence noted as it is offered; but no new trial shall be granted by the district court on the ground that incompetent or irrelevant evidence has been received, or on the ground of the insufficiency of the evidence”-and there was inserted in lieu of the sentences so stricken out the provision which we have italicized in section 7846, supra. There was also eliminated the following sentence which appeared in the former law: “All incompetent and irrelevant evidence, properly objected to in the trial court, shall be disregarded by the supreme court, but no objection to evidence can be made for the first time in the supreme court.” Aside from these changes, section 7846, Supplement to the Compiled Laws of 1913, is identical with section 7846, Compiled Laws 1913.

In Prescott v. Brooks, 11 N. D. 93, 90 N. W. 129, this court construed the legislative enactment of 1897, which had been incorporated as section 5630, Revised Codes of 1899, and in that case this court, after careful consideration, held that the procedure provided therein could not and did not apply to an appeal from a part of a judgment, that under such statute a retrial of the entire case or of any specified question of fact therein could be had only upon an appeal from the whole judgment, and that an appeal from a part of the judgment did not confer jurisdiction upon the Supreme Court to review the evidence and retry any question of fact. The rule thus announced has been followed without deviation in several subsequent cases. See Crane v. Odegard, 11 N. D. 343, 91 N. W. 962;Tronsrud v. Land Co., 18 N. D. 417, 121 N. W. 68;Hoellinger v. Hoellinger, 38 N. D. 636, 166 N. W. 519;Marquette Nat. Fire Ins. Co. v. McCutcheon, 54 N. D. 596, 211 N. W. 433, 434. Appellant concedes that the decisions in Crane v. Odegard and Tronsrud v. Land Co., sustain the rule announced in Prescott v. Brooks, and, if adhered to, preclude any review of the evidence on an appeal taken from a part of a judgment; but he contends that the amendment of 1919 changed the rule and renders the former holdings inapplicable. He further contends that this court, in its decision in Marquette Nat. Fire Ins. Co. v. McCutcheon, supra, departed from the rule announced in Prescott v. Brooks and the subsequent decisions which followed it, and in effect held that the evidence could and would be reviewed on an appeal from a part of the judgment.

In our opinion these contentions are untenable. The changes made by the amendment of 1919 speak for themselves. There is nothing therein to indicate any intention to change the then established rule as regards the right of review on an appeal from a part of a judgment. As indicated, the only changes made in the statute were: (1) An elimination of the provision requiring all the evidence offered at the trial to be taken, and of the provision requiring that all incompetent and irrelevant evidence, properly objected to in the trial court, be disregarded by the Supreme Court; and (2) the grant of authority to the Supreme Court, in cases where it found that material evidence had been excluded by the trial court, to remand the case in order that such evidence might be adduced. Clearly these changes had no relation to the rule announced in Prescott v. Brooks and subsequent cases. The provisions of the statute which formed the basis of that rule were not changed in any particular.

Neither did the decision in Marquette Nat. Fire Ins. Co. v. McCutcheon, supra, depart from or repudiate the rule announced in Prescott v. Brooks. On the contrary, it reaffirmed and applied that rule in an action which arose several years after the amendment of 1919 had become effective. In the original opinion in Marquette Nat. Fire Ins. Co. v. McCutcheon, ...