De Lendrecie v. Peck

• Citation: 48 N.W. 342,1 N.D. 422
• Parties: De Lendrecie v. Peck.
• Decision Date: 25 February 1891
• Court: United States State Supreme Court of North Dakota

1 N.D. 422

48 N.W. 342

De Lendrecie

v.Peck.

Supreme Court of North Dakota.

Feb. 25, 1891.

Syllabus by the Court.

The action of the trial court in directing a verdict, and in refusing to allow plaintiff to dismiss her action, cannot be reviewed on appeal without an exception. Sections 5080, 5237, Comp. Laws, held not to permit such review without an exception.

Appeal from district court, Dickey county; W. S. Lauder, Judge.W. E. Dodge, for appellant. S. H. Moer, for respondent.

Corliss, C. J.

We regret that imperative rules of practice prevent our examining the merits of the questions raised on this appeal. They are not properly before us. Appellant's counsel has failed to challenge by exception the correctness of the ruling of which her new counsel now complains. The action is in the nature of replevin. Plaintiff's theory of the action, as disclosed by the complaint, was absolute ownership. On the trial she asked the privilege to amend her complaint by averring a special interest in the property. This request was denied. While this ruling was excepted to, error is not here assigned on account of it, and the question is not argued in this court. Failing to secure an amendment, plaintiff then requested leave to dismiss her action. This motion was not ruled upon. At the same time defendant asked for an instruction from the court directing a verdict in his favor. The motion of defendant was granted, and from the judgment based upon the verdict so directed this appeal is taken. Appellant's counsel failed to except to the action of the court directing a verdict; nor did he except to the failure of the court to allow plaintiff the privilege of dismissing the action on her motion. The necessity of exceptions to present these questions is not seriously controverted, except upon the theory that the general rule requiring an exception in such cases is rendered inapplicable by the provisions of section 5080 and section 5237, Comp. Laws. Section 5080 cannot possibly have any application. The ruling of the court in directing a verdict cannot be construed as either an order or a decision, within the meaning of that section. Such ruling, if erroneous, constitutes an error of law occurring on the trial. The California statute is practically the same as section 5080, so far as this question is concerned. Mr. Hayne says, speaking of the California practice in this respect: “As has been shown, an erroneous ruling on a motion for a nonsuit is an error of law. Under the language of the subdivision, therefore, it must be excepted to, and, as it is not one of those matters which are deemed to be excepted to, the exception must be taken by the party. The exception is to be taken in the same manner as exceptions to the admission or rejection of evidence.” Hayne, New Trial & App. § 119. Only the verdict of a jury, certain orders, and certain decisions are deemed excepted to. The direction of a verdict, certainly, is not the verdict, nor is it an order or a decision. An order is defined as “every direction of a court or judge made or entered in writing, and not included in a judgment.” Section 5323, Comp. Laws. A decision is the written statement of the court's findings of fact and conclusions of law. Sections 5066, 5067, Id. Nor will section 5237 aid the appellant. It provides that, “upon an appeal from a judgment as well as upon a writ of error, the supreme court may review any intermediate order or determination of the court below which involves the merits, and necessarily affects the judgment, appearing upon the record transmitted or returned from the district court, whether the same were excepted to or not. Nor shall it be necessary in any case to take any exception or settle any bill of exceptions to enable the supreme court to review any alleged error which would, without a bill of exceptions, appear upon the face of the record.” To bring the ruling of the trial court in this case within this section, it must be either an order or a determination. That it is not an order is apparent from the statutory definition of an “order” already referred to. There can be found no decision in which such a ruling, or indeed any ruling,...