Littel v. Phinney

• Decision Date: 09 October 1901
• Citation: 10 N.D. 351,87 N.W. 593
• Parties: LITTEL v. PHINNEY et al.
• Court: North Dakota Supreme Court

10 N.D. 351

87 N.W. 593

LITTEL

v.PHINNEY et al.

Supreme Court of North Dakota.

Oct. 9, 1901.

Syllabus by the Court.

1. In a case tried to the court without a jury this court is without authority to try the case anew unless the statement of the case embraces all the evidence. The certificate of the trial court to the effect that the statement embodies all the evidence is sufficient prima facie, but is not conclusive of the fact, where the record shows on its face that the statement does not contain all the evidence.

2. Applying these rules to this record, the judgment of the trial court must be affirmed, and the same is affirmed, but without prejudice to further proceedings to determine the rights of the parties with respect to the subject-matter involved in this action.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Action by Frank E. Littel against Bunton H. Phinney and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Curtiss Sweigle (Charles E. Wolfe, of counsel), for appellant. Freerks & Freerks, for respondents.

WALLIN, C. J.

This action was tried in the district court without a jury, and judgment was entered in that court in favor of the defendants, dismissing the action, and giving other relief. Plaintiff appeals to this court from said judgment, and in the statement of the case, which purports to embody all of the evidence offered at the trial, the plaintiff asks for a trial anew in this court of the entire case. Nevertheless, it appears upon inspection of the record that the statement of the case fails to embrace all of the evidence offered at the trial, and that a portion of such evidence is omitted from the statement. In this condition of the record this court is without lawful authority to try the case anew. Authority to try civil actions anew in this court is derived solely from the statute, and, when the statute is not complied with, this court is devoid of authority to enter upon a new trial of the facts, or upon a reinvestigation of the questions arising upon the evidence. See Rev. Codes 1899, § 5630; also Loan Co. v. McLeod (N. D.) 86 N. W. 110; Kipp v. Angell, Id. 706; In re Fluegel's Estate, Id. 712. Nor can this court, in cases such as this, proceed to inquire whether the facts embraced in the findings are justified by the evidence, or whether evidence in the record is or is not admissible under the issues. In this case the conclusions of law and the judgment are justified by the...