Goodman v. Mevorah

• Citation: 59 N.W.2d 192,79 N.D. 653
• Decision Date: 04 May 1953
• Docket Number: No. 7358,7358
• Parties: GOODMAN et al. v. MEVORAH et al.
• Court: North Dakota Supreme Court

Page 192

59 N.W.2d 192

79 N.D. 653

GOODMAN et al. v. MEVORAH et al.

No. 7358.

Supreme Court of North Dakota.

May 4, 1953.

Rehearing Denied June 20, 1953.

Syllabus by the Court.

1. On an appeal to the supreme court the appellant has the burden of presenting a record affirmatively showing error.

2. A party aggrieved by an adverse verdict may move that the verdict be vacated and a new trial granted for any of the causes for a new trial specified by law, NDRC 1943, 28-1902, or he may appeal from the judgment rendered upon the verdict. The two are independent remedies and a party aggrieved may invoke one or the other or both at his election provided he does so in the time and in the manner provided by the statute.

3. Where there is a motion for a new trial, rulings of the trial court which constitute proper grounds for a new trial under the statute must be presented upon such motion; otherwise they will be deemed waived.

4. Where a motion for a new trial is made and denied before judgment is rendered and entered the order denying a new trial is reviewable on an appeal from the judgment.

5. An order denying a motion for a new trial made after the entry of judgment is an appealable order.

6. Where an order denying a motion for a new trial is made after judgment an appeal from the judgment alone does not bring up for review the order denying a new trial.

7. In the instant case judgment upon a verdict in favor of the defendants was rendered and entered on February 5, 1952. After the entry of the judgment plaintiffs moved for a new trial on the grounds of insufficiency of the evidence to justify the verdict and that the verdict is against law, errors in law occurring at the trial and excepted to by the plaintiffs and errors in instructions to the jury. Both parties appeared at the hearing of the motion and a full hearing was had. On March 26, 1952, the district court made an order denying the motion for a new trial. Such order was filed and entered in the office of the clerk of the district court on April 1, 1952. No appeal was taken from such order nor was such motion renewed or any application made for a vacation or modification of the order denying a new trial. On July 30, 1952, more than three months after the expiration of the time allowed by law for appeal from the order denying a new trial, plaintiffs took and perfected an appeal from the judgment. On such appeal plaintiffs served with the notice of appeal a statement of the errors of law complained of, specifying as such errors, insufficiency of the evidence to justify the verdict and errors in law occurring at the trial, consisting of rulings on the admission and exclusion of evidence and on instructions to the jury. It is held, for reasons stated in the opinion, that the order of the district court denying a new trial had become final and binding upon the parties before the appeal from the judgment was taken and is determinative of the questions and issues sought to be presented by the plaintiff for determination on this appeal.

Lanier, Lanier & Knox and Aaron Aronson, Fargo, for appellants.

Burnett, Bergesen, Haakenstad & Conmy, Fargo, for respondents.

CHRISTIANSON, Judge.

Plaintiffs brought this action to recover the possession of a stock of automobile and tractor parts and other merchandise. In the complaint it is alleged that the plaintiffs are the owners and entitled to the immediate possession of such property; that their title is based upon a contract between the plaintiffs and defendants under which the defendants agreed to purchase said merchandise from the plaintiffs and to pay therefor in installments; that such contract is in default and has been terminated by due notice to the defendants; that said property is in the possession of the defendants in the City of Fargo, Cass County, North Dakota; that possession thereof has been demanded by the plaintiffs and that such demand has been refused; that said personal property has not been taken for a tax assessment or fine pursuant to statute or seized under an execution or attachment against the property of either the plaintiffs or defendants, and that the value of such property is $3,000.

Ancillary to such action the plaintiffs instituted a proceeding of claim and delivery as provided under NDRC 1943, Chapter 32-07, and by an endorsement in writing upon the affidavit in such proceeding required the sheriff of the county of Cass where the property was located to take the same from the defendants and deliver it to the plaintiffs. NDRC 1943, 32-0703. Accordingly the property was taken by the sheriff from the defendants and delivered to the plaintiffs in this action. The defendants interposed an answer and counterclaim. In such answer they specifically denied that the plaintiffs are the owners of or entitled to the immediate possession of the stock of automobile and tractor parts and other merchandise described in the complaint and they alleged that the defendants purchased such property on their own account and that the same constituted no part of the stock of goods sold to the defendants by the plaintiffs on a conditional sales contract. In their counterclaim the defendants allege that on June 23, 1950, they entered into a contract in writing wherein and whereby they purchased outright the trade name of Irving's Tractor Lug Company and thereafter filed a certificate in the office of the Clerk of the District Court of Cass County showing them to be copartners doing business under such trade name; that under the said contract the stock of goods then owned by the plaintiffs was sold to the defendants conditionally; that under said contract the defendants were authorized to purchase and did purchase additional merchandise and that the merchandise so purchased is not covered by the conditional sales agreement and that the plaintiffs have no right and title thereto and no right to the possession thereof; that the stock of automobile and tractor parts and other merchandise described in the complaint was purchased by the defendants from third parties within the last month and is contained in the original packages of shipments and that the defendants are the owners of said property; that by reason of the unlawful seizure and detention of such property by plaintiffs in this action the defendants were unable to resell such property, that their credit is harmed and their business destroyed and that they have been and are subjected to disturbance, annoyance and expense in defending their title to said property, all to their damage in the sum of $6,000. The plaintiffs interposed a reply to the counterclaim denying each and every allegation thereof except as the same admitted allegations in the complaint. The case was tried to a jury upon the issues framed by these pleadings. At the close of all the evidence defendants moved the court to dismiss plaintiffs' action on the grounds that it appears from the undisputed evidence and as a matter of law that the plaintiffs have no right or title to the possession of the goods concerned in the action, thereupon plaintiffs' counsel stated: 'May the record show that that motion is not resisted under the present state of the record, but that the plaintiff enters his agreement with this motion and does so, not waiving any of his rights to appeal from assigned errors under rulings of evidence during the course of the trial.' Thereupon the court stated, 'That, of course, then is agreed upon as far as that motion is concerned.' To which plaintiffs' counsel replied, 'That is correct, your honor.' Thereupon the court ruled that the motion to dismiss the action be granted. Immediately thereafter the defendants' counsel moved that the court direct a verdict for the defendants on 'the counterclaim in such sum as they (the jury) determine is proper under the instructions as to damages.' The attorney for the plaintiffs stated, 'that motion is not resisted with the same reservation on right to appeal on assigned errors on rulings and instructions.' The court ruled that the motion be granted. Thereafter the case was submitted to the jury.

The jury returned a verdict in favor of the defendants for $4,600. On February 5, 1952, judgment was entered pursuant to the verdict. After the entry of the judgment plaintiffs moved for a new trial. In the notice of motion and in the motion for a new trial plaintiffs specified as grounds for the motion for a new trial: insufficiency of the evidence to justify the verdict and that it is against law; errors in law occurring at the trial and excepted to by the plaintiffs; errors in instructions to the jury. In the specifications attached to the notice of motion and motion it is stated that the court erred in refusing to allow the plaintiffs to introduce certain testimony relating to alleged breaches of the conditional sales contract between the parties and testimony under an offer of proof made by the plaintiffs; that the court erred in admitting testimony as to the resale value of the merchandise in question over the objections of the plaintiffs; that the court erred in its instructions to the jury as to the measure of damages and erred in refusing to give to the jury certain instructions requested by the plaintiffs. The motion for a new trial came on to be heard pursuant to notice on March 24, 1952. On March 26, 1952, the district court made an order denying the motion for a new trial. Such order was filed and entered in the office of the clerk of the district court on April 1, 1952. On July 30, 1952, the plaintiffs took and perfected an appeal from the judgment which was entered on February 5, 1952.

The appellant has the burden of presenting a record affirmatively showing error. It is a rule of general application that an appellate court will indulge all reasonable presumptions in favor of the correctness of a judgment from which the appeal was taken. 'Indeed error is never presumed on appeal, but must be affirmatively shown by the...