First National Bank v. Merchants National Bank
| Decision Date | 28 October 1895 |
| Citation | 64 N.W. 941,5 N.D. 161 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ramsey County; Morgan, J.
Action by the First National Bank of Devils Lake, N. D., against the Merchants' National Bank of Devils Lake, N. D., and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
Cowan & McClory, and Joseph Denoyer, for appellants.
M. H Brennan, (Cochrane & Feetham, of counsel,) for respondents.
This was an action in the nature of replevin to recover the possession of certain wheat. It was tried to a jury, but after all the testimony had been put in, and after both sides had rested the case, it was agreed in open court that the jury might be discharged, and the case be submitted to the court for final determination; whereupon the jury was discharged, and the court made and filed its findings of fact and conclusions of law, and directed that judgment be entered in favor of the plaintiff, and judgment was entered accordingly. The only exception taken to such findings is in the following language: "The defendants, by their attorneys, hereby except to the findings of the courts in the above entitled action." Subsequently the defendants proposed a bill of exceptions, and a bill was settled by the trial court; but there were no specifications of errors of law incorporated in such bill, nor was there an attempt made to specify in such bill wherein the findings of fact were not justified by the evidence. In its order settling the bill the trial court states that the bill "is hereby settled and allowed as a true bill of exceptions herein, containing all the testimony in said case necessary to the determination thereof." Appellants' brief, as filed in this court, contains no assignments of error, as required by rule numbered 15 of the rules of this court; nor is the judge's certificate, as required by rule 12 of the rules of this court, appended to the record transmitted to us by the court below. We further find in the record, following the order setting the bill of exceptions, and in addition to the certificate of the clerk of the District Court, as required to be made by section 5217 of the Compiled Laws, the following certificate of the trial judge: "I hereby certify that the above and foregoing is a full, correct, and complete transcript of all testimony taken, proceedings had, and exhibits introduced in evidence, in the above entitled action; that the exhibits hereto attached are the original exhibits introduced in the said action."
When the case was reached in this court, and pursuant to notice counsel for respondent made and argued a preliminary objection (based upon the record) to the hearing or trial of the case in this court. Appellants' counsel did not appear to oppose said motion. The court took the motion under advisement, and the case on the merits was submitted on briefs. It is never a pleasant duty to dispose of a case coming into this court upon purely technical grounds, and without considering the merits; but, in the interest of a sound and uniform practice, it sometimes becomes necessary to do so. This course must be pursued in the case under consideration. The preliminary objections urged by respondent's counsel against either hearing this case for the purpose of reviewing errors below, or for the purpose...
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