De Lendrecie v. Peck

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

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.

[48 N.W. 342]

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,

[48 N.W. 343]

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...