Hagen v. Gilbertson
| Decision Date | 09 December 1901 |
| Citation | 10 N.D. 546,88 N.W. 455 |
| Parties | HAGEN v. GILBERTSON et al. |
| Court | North Dakota Supreme Court |
1. This action was tried to a jury, and after the evidence was put in, and the case had been rested on both sides, counsel on each side, respectively, requested a directed verdict. No ruling was made on either of said requests, but it appears that, immediately after said requests were made, counsel agreed in open court that the jury should be waived, that the case should be made a court case, and that each party should prepare findings and submit the same to the court. Thereupon the jury was discharged. Subsequently the trial court filed findings of fact and law, upon which judgment was entered for the plaintiff. Defendants appeal to this court, and in their statement have requested a trial anew of the entire case in this court. During the trial as had before the jury, the court sustained numerous objections made to questions propounded to witnesses, and in such cases the evidence thus offered was excluded, and was never brought upon the record. In other instances evidence which was offered at the trial was ruled out, and the same was not preserved in the record. Held that, upon this state of facts, this court, under section 5630, Rev. Codes 1899, is without authority to enter upon a trial of the issues anew.
2. Held, further, that this court, in cases tried to the court, where it is without authority to retry the issues anew, will not sit to review errors in the rulings made in the trial court.
3. For reasons given in the opinion, it is further held that the judgment must be reversed, and a new trial awarded.
Appeal from district court, Richland county; W. H. Winchester, Special Judge.
Action by Lena Hagen against Culbert Gilbertson and William Rohan. From a judgment in favor of plaintiff, defendants appeal. Reversed.
McCumber, Forbes & Jones, for appellants. A. T. Cole and W. E. Purcell, for respondent.
The complaint in this action charges, in substance, that the defendants, acting together and conspiring to injure and defraud the plaintiff, obtained from the plaintiff at divers times in the years 1896 and 1897 certain sums of money and a certain promissory note, as follows: $113.85 so obtained was paid over by plaintiff to the defendant Rohan, and $100 so obtained was received by the defendant Gilbertson, and a certain note for $75, signed by the plaintiff with an indorser, and payable to said Gilbertson, was turned over by plaintiff to Gilbertson. It is further alleged that said money and said note were paid over and delivered to the defendants without any consideration whatever, and that the same were procured by deception, fraud, and undue influence practiced upon the plaintiff by the defendants, acting jointly and in pursuance of a conspiracy to defraud the plaintiff. Judgment is demanded against the defendants for the sum of $213.85, with interest, and also for the cancellation and surrender of the note. The district court entered judgment as follows: A several judgment for $100, with interest, was entered against defendant Gilbertson; and it was further adjudged that said defendant should surrender to plaintiff said note for $75, and further adjudged that said defendant should pay plaintiff the costs and disbursements of the action, taxed at $63.80. It was also adjudged that the plaintiff have and recover of the defendant Rohan a several judgment for the sum of $141.73, with costs and disbursements of the action. From such judgments the defendants have appealed to this court, and, in the statement of the case, defendants have demanded a trial of the entire action anew in this court.
We have reached the conclusion that upon this record a trial de novo cannot be had in this court, and this ruling is placed upon the ground that all the evidence offered in the trial court is not incorporated in the statement of the case. The case was tried before a jury, and after all the evidence was elicited, and both sides had rested the case, a motion was made in behalf of the plaintiff, and also in behalf of the defendants, for a directed verdict. No ruling was made by the trial court in response to either of said motions for a directed verdict, but the record shows that, immediately after said motions were made, the respective parties agreed in open court as follows: “In open court the jury is now waived by both parties, and it is made a court case; each party to prepare findings and submit them to the court within thirty days.” Upon this stipulation of counsel the jury was discharged without returning a verdict, and thereafter the trial court made and filed its findings of fact and law upon which the judgment was entered. None of the findings of fact show or tend to show that the defendants conspired together or acted conjointly in procuring the several sums of money and the note from the plaintiff as charged in the complaint, but, on the contrary, the several facts as found show that each defendant acted independently, in so far as he acted at all, with respect to the subject-matter set out in the complaint. As a conclusion of law the trial court finds that the plaintiff was entitled to recover of each defendant a several judgment, and further found, in terms, “that the defendants are not jointly liable herein.” The statement embraces a list of alleged errors of law based upon the rulings of the trial court in admitting and excluding the evidence, and also error in denying the defendants' motion for a directed verdict. Following the specifications of errors of law, we also find in the record a list of alleged errors leveled against the findings of fact, in which the appellants have attempted to specify wherein the evidence does not warrant or justify such findings of fact. The record discloses the further fact that the trial of the action was, at all times prior to the discharge of the jury, conducted as jury cases are required to be conducted. As the trial progressed, counsel from time to time objected to questions as propounded to the witnesses. Some of such objections were overruled, and others were sustained, by the trial court. In cases where the objections to questions were sustained, the evidence sought to be elicited from the witnesses by such questions was excluded from the jury, and the same was never brought upon the record in any manner. In several instances counsel offered to introduce evidence to show a particular state of facts, and upon objection being made to such evidence the trial court excluded the same from the consideration of the jury, and the same was not in any manner preserved or brought upon the record. The evidence thus excluded was not, therefore, considered by the trial court in deciding the case; nor is the same presented to this court for its consideration.
Upon this record, in view of the reiterated rulings of this court upon the point, it is needless to say that this court is not possessed of the right or authority, under the statute, to try the case anew upon the facts and merits. As we have often said, our right to enter upon a retrial of a case rests entirely upon the language of the statute embodied in section 5630, Rev. Codes 1899. To do so, it must affirmatively appear, first, that upon the trial of the action in the district court all the...
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