Flora v. Mathwig

• Decision Date: 14 April 1909
• Citation: 121 N.W. 63,19 N.D. 4
• Parties: FLORA et al. v. MATHWIG.
• Court: North Dakota Supreme Court

19 N.D. 4

121 N.W. 63

FLORA et al.

v.MATHWIG.

Supreme Court of North Dakota.

April 14, 1909.

Syllabus by the Court.

Whether a verdict is sustained by the evidence or not will not be considered on appeal to this court, in the absence of specifications in the statement of the case of the particulars in which the evidence fails to sustain the verdict.

Objection to evidence, on the alleged ground that it is incompetent, irrelevant, and immaterial is too indefinite in cases where the ground of the objection might be remedied.

A question calling for the conclusion of a witness as to what another party understood as to the nature of a transaction is objectiontionable, as calling for a conclusion not based on facts.

Various objections to evidence considered, and held to be without merit.

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

Action by Frank Flora and Frank Towne against Emma L. M. Mathwig. Judgment for plaintiffs. Defendant appeals. Affirmed.J. W. Tilly and Herman Winterer, for appellant. Lee Combs, for respondents.

MORGAN, C. J.

This is an action upon two promissory notes for the sum of $250 and $55, respectively. As to the latter no defense is made. As to the former the sole defense interposed is that the defendant signed the same as surety, and that the note was signed by her in part payment of certain machinery sold by plaintiffs to one Haessley, and plaintiffs took security from said Haessley upon the machinery, and also took an earnings contract as security for the purchase price, and that the plaintiffs subsequently purchased said machinery from said Haessley and sold the same to a third person, and that the note which she signed as surety was thereby paid, and defendant released from all liability thereunder. The action was tried to a jury, which found a verdict in plaintiff's favor for the full amount claimed. Defendant made a motion for a new trial, which was denied, and defendant appeals.

It is claimed that the verdict is not supported by the evidence. The record on appeal, as prepared, compels a disregard of this assignment. There is no specification of the particulars in which the evidence fails to sustain the verdict. The statute governing what a statement of the case shall contain provides as follows: “There shall be incorporated in every such statement a specification of the particulars in which the evidence is alleged to be insufficient to justify the verdict or other decision, and of the errors of law upon which the party settling the same intends to rely. If no such specification is made, the statement shall be disregarded on motion for a new trial and on appeal.” Section 7058, Rev. Codes 1905. The rules of practice of this court as shown by rule 7 (91 N. W. vi) expressly state that such specifications of the particulars in which the evidence is insufficient to justify the verdict are deemed vital parts of every statement of the case. There was no attempt to comply with this statute, or with rule 7 (91 N. W. vi) in this case, and the statement is entirely wanting in specifications of such particulars. Under the express terms of the statute we cannot do otherwise than disregard the statement so far as the specification that it is contrary to the evidence is concerned. There are 74 specifications of error in the statement of the case. Sixty-eight of these relate to the admission or rejection of evidence. The assignments in the brief of the errors relating to the admission or rejection of evidence is in this language: “The court erred in its ruling on the competency and admission of evidence during the trial, as specified in appellant's specifications of error. Abstract, pp. 115-134, folios 454-434, inclusive.” The assignments are therefore to be found in about 20 pages of the abstract. In the body of the brief, however, the reference to the abstract is more definite. For instance, the first assignment of error argued or referred to in the brief is prefaced by this statement by the attorney: “We call the court's attention to error of law 4, abstract, p. 115, which appears in abstract, p. 10, folio 36.” Turning to the abstract at folio 36, we find the question, the objection, the ruling, and an exception showing what the assignment was based upon. We call attention to this manner of making assignments in the brief as not in accordance with the rules of practice.Rule 14 (91 N. W. viii) states that an assignment of error in the brief must point out the errors objected to in a way as specific as the case will allow, and only such assignments are to be therein incorporated as the attorney expects to rely...