Hovland v. Hovland

• Decision Date: 30 June 1960
• Docket Number: No. 7819,7819
• Citation: 104 N.W.2d 6
• Parties: David M. HOVLAND, Plaintiff and Respondent and Cross-Appellant, v. Louise HOVLAND, Defendant and Appellant and Cross-Respondent.
• Court: North Dakota Supreme Court

Page 6

104 N.W.2d 6

David M. HOVLAND, Plaintiff and Respondent and Cross-Appellant, v. Louise HOVLAND, Defendant and Appellant and Cross-Respondent.

No. 7819.

Supreme Court of North Dakota.

June 30, 1960.

Syllabus by the Court

1. Where upon an appeal from a judgment entered in a case tried to a court without a jury, no facts are specified in the statement of the case for review and no demand for a trial anew of the entire case is specified therein, the appellate court can only consider and determine errors specified upon the judgment roll and whether the findings, which are deemed at law to be true, sustain the judgment.

2. Upon an appeal, taken pursuant to Section 28-2732 NDRC 1943, the review of the evidence may be limited to certain specified questions of fact, in which case the facts not specified for review are deemed to be as found by the trial court, but the review may not be limited to a portion of the judgment.

Greenwood & Swanson, Dickinson, for defendant, appellant and cross-respondent.

Mackoff, Kellogg, Muggli & Kirby, Dickinson, for plaintiff, respondent and cross-appellant.

BURKE, Judge.

In this action each of the parties sought a divorce from the other. Plaintiff in his complaint, alleged extreme cruelty and adultery on the part of the defendant and defendant in her cross-complaint, alleged extreme cruelty on the part of the plaintiff. The trial court, after a trial of the action, found that the allegations of plaintiff's complaint were established by the evidence and directed the entry of a judgment, granting the plaintiff a divorce, awarding him the custody of the five children of the marriage and awarding the defendant alimony in the sum of $250, payable immediately, and $50 a month thereafter, until the defendant should remarry or until the further order of the court. Both parties have appealed. The defendant attacks the parts of the judgment which granted custody of the children to the plaintiff, and which allowed the defendant alimony in a sum which she claims is grossly inadequate. On the other hand plaintiff contends that, upon the record defendant should have been allowed no alimony at all.

Neither party has demanded a trial anew in this court either as to the whole case or as to any specified facts.

Appeals in actions tried to a court without a jury are governed by Section 28-2732 NDRC 1943. This section provides:

'A party desiring to appeal from a judgment in any such action (one tried to the court without a jury) shall cause a statement of the case to be settled within the time and in the manner prescribed by chapter 18 of this title, 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. 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.'

This statute has been repeatedly and uniformly construed by this court to require, upon appeals in cases tried to a court without a jury, either a demand for a trial anew or a specification of the questions of fact which the appellant desires the Supreme Court to review, if a review of the evidence in the case is desired. In the absence of such demands the review upon appeal is limited to a consideration and determination of whether the findings in the case sustain the judgment. Swanston v. Swanston Equipment Co., N.D., 74 N.W.2d 452; Ricks v. Bergsvendsen, 8 N.D. 578, 80...