Kipp v. Angell

• Decision Date: 03 May 1901
• Docket Number: 6731
• Citation: 86 N.W. 706,10 N.D. 199
• Court: North Dakota Supreme Court

86 N.W. 706

10 N.D. 199

S. KIPP, et al v. E. D. ANGELL

No. 6731

Supreme Court of North Dakota

May 3, 1901

Appeal from District Court, Cass County; Pollock, J.

Action by S. and O. Kipp against E. D. Angell. Judgment for defendant, and plaintiffs appeal.

Affirmed.

J. E Robinson, for appellants.

Newman Spalding & Stambaugh, for respondent.

OPINION

WALLIN, C. J.

This action was brought to determine an adverse interest in certain real estate described in the plaintiff's complaint. The case was tried below without a jury, and resulted in the entry of a judgment in the defendant's favor. From such judgment the plaintiffs have appealed to this court, and in the settled statement of the case the plaintiffs have demanded a retrial in this court of all the issues in the case.

When the case was called in this court, a motion was submitted in behalf of the respondent to affirm the judgment of the court below. The grounds of said motion, as stated in the moving papers, are as follows: "Now comes the respondent, and moves the court upon the record and proceedings herein to affirm the judgment of the District Court, for the reason that the statement of the case contained in the record shows upon its face that it does not contain all the evidence offered upon the trial material to the questions raised by appellants upon this appeal, and affirmatively shows upon its face that in place of such evidence it does contain a statement of counsel, substituted therefor, as to the nature and effect of such evidence." In the brief submitted upon the motion by counsel for the respondent the attention of the court is directed to certain matter appearing in the statement of the case, which matter is as follows: "The plaintiffs then offered in evidence the verification which the assessor attached to the assessment book of the town of Berlin for the year 1886 for the purpose of showing that the assessor failed to attach to said book an affidavit as required by statute. From said book it appeared that the assessor subscribed a document in the form of the affidavit prescribed by section 1551 of the Comp. Laws, and that the subscription and jurat were as follows: 'Thomas Spencer Assessor. Subscribed and affirmed before me, this 30th day of June, 1886. S. M. Edwards.' That said jurat was not signed officially, and it fails to show that said S. M. Edwards was an officer authorized to administer an oath. And from said book it appears that no other affidavit was attached to the assessment book. The defendant objected to this evidence as irrelevant, incompetent, and immaterial. * * * The plaintiff then offered in evidence the tax list of Cass county for the year 1886,--that is, the tax list of the town of Berlin, in Cass county, --for the purpose of showing that the warrant annexed to the same was not under seal. And from an inspection of said list it appears that no warrant is annexed to the same under the seal of the county commissioners of Cass county, or under any seal whatever. The defendant objected to this evidence as incompetent, irrelevant, and immaterial. * * * The plaintiffs then offered in evidence the newspapers, which have been produced from the office of the county treasurer, so far as the same pertains to the land in question, for the purpose of showing that in publishing said tax list for the year 1895 the land in question was described as follows: 'Und qr nw qr 25 141 50.' Objected to as incompetent, irrelevant, and immaterial, and for the reason that no foundation has been laid for its admission. That is the exact description as given in said newspaper. The plaintiffs offered in evidence the tax list as published for the year 1886, pertaining to the property in question, which is therein described as follows, opposite the name of W. H. Berry: '1/4 int of n hf sec 25 t 141 5 50.'" The above and foregoing matter, which we have copied verbatim from the statement of the case, shows that at the trial in the District Court certain documents and papers relating to the validity of alleged taxes upon the land in question were offered in evidence in plaintiffs' behalf, and that when such offers were made counsel for the respondent interposed certain objections to such evidence, which objections were noted and brought upon the record. These excerpts from the record show also, that when such evidence was offered, counsel for the plaintiffs who tried the case below made certain statements concerning the purpose for which the evidence was offered by him, and also statements in which counsel assumed to state what facts the documents offered in evidence did show and prove. These statements of counsel are preserved in the record, and they constitute a part of the proceedings had at the trial, and as such they are now properly before this court for consideration. Nor do counsel for respondent seek to exclude these statements of plaintiffs' counsel from the record; but the contention is that these statements do not rise to the rank of evidence, inasmuch as they were not given under oath, nor were they offered as testimony at the trial. The evidence actually offered, as shown by the record, consists of the following items: (1) The verification attached to a certain assessment book; (2) the tax list of the town of Berlin, in Cass county, for the year 1886; (3) certain newspapers, so far as their contents...