Jensen v. Clausen

• Decision Date: 10 August 1916
• Citation: 159 N.W. 30,34 N.D. 637
• Parties: JENSEN v. CLAUSEN.
• Court: North Dakota Supreme Court

34 N.D. 637

159 N.W. 30

JENSEN

v.CLAUSEN.

Supreme Court of North Dakota.

Aug. 10, 1916.

Syllabus by the Court.

The credibility of witnesses and weight of their testimony are questions for the jury.

Where there is a motion for a new trial, rulings of the trial court constituting proper grounds for a new trial under the statute must be so presented; otherwise, they will be deemed waived.

Certain rulings on the admission of evidence examined, and held nonprejudicial.

It is held that the trial court did not abuse its discretion in denying a motion for a new trial on the ground of newly discovered evidence.

Where a complaint wholly fails to set out a substantial cause of action, and cannot be made good by amendment, the objection to its sufficiency may be urged at any time; but such objection is not viewed with favor where raised for the first time on appeal, and the complaint will be construed liberally and supported by every legal intendment.

Appeal from District Court, Ward County; Leighton, Judge.

Action by Jens Jensen against L. F. Clausen. From a judgment for plaintiff, and an order denying new trial, defendant appeals. Affirmed.L. F. Clausen, of Kenmare, for appellant. Palda & Aaker and I. M. Oseth, all of Minot, for respondent.

CHRISTIANSON, J.

Plaintiff, who is a farmer residing in Ward county in this state, brings this action against defendant, who is an attorney, to recover damages for certain alleged wrongful and fraudulent acts on the part of defendant. The evidence offered by plaintiff tended to show the following facts:

In March, 1913, and for some time prior thereto, the plaintiff, who is a bachelor, had a housekeeper, one Mrs. Domsten. They resided on plaintiff's farm near Kenmare. Mrs. Domsten was a married woman, who had separated from her husband, and the defendant, who is an attorney, was engaged by her to institute an action for divorce against her husband, Martin Domsten. While the divorce action was pending, the defendant, on or about March 31, 1913, called the plaintiff into his office and informed him that a neighbor had told him (defendant) that Mrs. Domsten was pregnant, and that plaintiff either had to pay to the defendant $1,000 or be sent to the penitentiary. Plaintiff at first refused to consider the proposition, stating that he and Mrs. Domsten were thinking of getting married, whereupon defendant informed him that she was still a married woman. After some further talk between them, plaintiff signed and delivered to defendant a note for $1,000, payable to the order of Martin Domsten, together with chattel and real estate mortgages securing payment thereof.

The defendant Clausen testifies that Domsten came to see him, and retained him to maintain an action for criminal conversation against the plaintiff, and that the note and mortgages, executed by the plaintiff, were executed and delivered in settlement of the civil liability involved in such proposed action. Domsten testified that he came to see the defendant about the pending divorce action wherein Domsten was defendant; that his own attorney, one Clark, was out of the city, and that he therefore went to see Mr. Clausen, who, as already stated, represented the plaintiff in such divorce case; that during the conversation then had Domsten stated that he wanted to make some adjustment with respect to the custody of the children involved in the divorce proceeding, and that if this matter were adjusted and Domsten's expenses paid he (Domsten) would not resist the divorce action; that some days later Domsten again saw the defendant and was informed by him that he had everything settled. In regard to the settlement then made between Domsten and the defendant, Domsten testified:

“Q. What did he give you as a settlement? What did he tell you your share was? A. He says you can take $100. Now, would you take a note, he says. I says I suppose I have to, if you don't got the money; so I took it.”

The note referred to was defendant's personal note, payable to Domsten. This note has not been paid. Some time after the commencement of this action defendant assigned to Domsten a note for $50, which the defendant had received from the plaintiff as part payment of his attorney's fees in the divorce case. At the time he received the $100 note, Domsten at defendant's request assigned to him the note and mortgages executed by the plaintiff, and defendant thereafter sold the same to a bank at Kenmare, in due course, before maturity, and for value, and plaintiff was compelled to pay the same to such bank.

The cause was tried to a jury and resulted in a verdict in plaintiff's favor, and defendantappeals from the judgment and the order denying his alternative motion for judgment notwithstanding the verdict or for a new trial.

[1] 1. Defendant asserts and the greater portion of his brief is devoted to an argument of the proposition, that the evidence is insufficient to sustain the verdict. Much of defendant's argument is directed at the credibility of the respective witnesses and the weight of their testimony. These were matters for the jury. Defendant did not move for a directed verdict. This is to some extent indicative of the fact that at the time of the trial he must have believed that there was an issue of fact to be determined by the jury; and an examination of the evidence leads us to the conclusion that we would not be justified in saying as a matter of law that the verdict is contrary to, or unsupported by, the evidence.

Defendant also asserts that the trial court gave two erroneous instructions to the jury.

[2] 2. Under the laws of this state misdirection is an error in law and constitutes one of the statutory grounds for a new trial. Section 7660, C. L. 1913. The statute requires that a party who makes a motion for a new trial shall serve with his notice of motion a concise statement of the errors of law of which he complains. Section 7656, C. L. 1913. In the case at bar defendant made a motion for a new trial upon several grounds, but no error was specified in the court's instructions to the jury. Hence the trial court, in ruling on the motion for a new trial, ruled upon the theory that no complaint was made of its instructions to the jury. It is true that, in absence of a motion for new trial, errors in instructions are reviewable on an appeal from the judgment. But when a party moves for a new trial he is required to embrace in such motion all errors complained of, which under the statute constitute...