O'Keefe v. Beecher

• Decision Date: 25 July 1908
• Citation: 17 N.D. 404,117 N.W. 353
• Parties: O'KEEFE v. BEECHER.
• Court: North Dakota Supreme Court

17 N.D. 404

117 N.W. 353

O'KEEFE

v.BEECHER.

Supreme Court of North Dakota.

April 30, 1908.

Rehearing Denied July 25, 1908.

Syllabus by the Court.

Failure to serve notice of appeal by one defendant upon his codefendant, against whom the action was dismissed by the trial court, is not ground for dismissing the appeal on motion of plaintiff, when the appellant does not rely upon the dismissal as error, and the respondent has not appealed from the order or judgment of dismissal.

Rule 7 of the Supreme Court (91 N. W. vi) is intended to facilitate the work of that court, and to aid litigants in pointing out and making clear the errors relied upon, and to relieve the court of the necessity of exploring the whole record.

In the statement of the case no attempt is made to comply with the requirements of the rule above cited by reducing the testimony to narrative form, or to eliminate those parts having no bearing upon the decision of the case, and the specifications of error do not comply with the requirements of the rule, but are scattered throughout the proceedings wherever an exception was taken. For these reasons this court will disregard everything except the judgment roll.

Rule 19 of this court (91 N. W. vi), prescribing the size of the page and method of binding typewritten abstracts and briefs, should be followed.

Appeal from District Court, Walsh County; E. B. Goss, Special Judge.

Action by William O'Keefe, Jr., against David H. Beecher. Judgment for plaintiff, and defendant appeals. Affirmed.Phelps & Phelps and John W. Ogren, for appellant. DePuy & DePuy, for respondent.

SPALDING, J.

Defendant appeals from a judgment of the district court awarding plaintiff damages in the sum of $207.23, and costs. The action was brought by plaintiff against one Omlie and the appellant jointly for the recovery of damages for an alleged breach of contract. After all parties had rested, a motion to dismiss the action as to defendant Omlie was granted, after which a verdict was rendered, and judgment entered against the appellant.

We first meet with a motion to dismiss the appeal. We see no merit in this motion. It is based on the ground that notice of appeal was not served upon Omlie. This was a matter which rested entirely with the appellant, Beecher. If he desired to protect his rights as against Omlie, and throw the burden upon him, he should have served notice of appeal on him; but the respondent cannot complain that he did not do so without himself appealing. Although he objected and excepted to the order, he has taken no appeal.

Rule 7 of the Supreme Court (91 N. W. vi), relating to the contents of the statement of the case, provides that: “If the evidence, or any part thereof, is embraced in the statement, it must be epitomized by excluding all superfluous matter and verbiage. The evidence shall be reduced to a narrative form except in those particulars in which a transcript of part of the stenographer's minutes becomes necessary to preserve the sense, or present the particular points of error. All superfluous matter, including all evidence not bearing upon the specifications, is required to be rigorously excluded. The stenographer's minutes of the trial, as settled and allowed, do not...