Mooney v. Donovan

• Decision Date: 17 November 1899
• Citation: 81 N.W. 50,9 N.D. 93
• Court: North Dakota Supreme Court

81 N.W. 50

9 N.D. 93

W. J. MOONEY v. E. I. DONOVAN

Supreme Court of North Dakota

November 17, 1899

Appeal from District Court, Cavalier County; Sauter, J.

Action by W. J. Mooney against E. I. Donovan. Judgment for plaintiff, and defendant appeals.

Affirmed.

J. C Monnet, for appellant.

Joseph Cleary, for respondent.

OPINION

BARTHOLOMEW, C. J.

This was a proceeding by mandamus on the part of a stockholder to compel the secretary to permit him to inspect the books and records of the corporation. He was successful in his efforts and the secretary appeals. We regret that the interesting questions raised by the appeal cannot be investigated in this court, but the practice statutes will not permit it. The alternative writ issued, and on the return day the defendant moved to quash for insufficiency of statement. The motion was denied, and an exception saved. Subsequently an answer was filed raising issues of fact, and the case was tried before the court upon parol testimony. Findings of fact and conclusions of law were made, followed by a judgment awarding the peremptory writ, and the issuance of the writ.

It is clear from a perusal of the abstract that, at the trial of the case, court and counsel proceeded upon the theory that the matter was being tried under the provisions of law relating to the trial of civil actions to the court without a jury; and the defendant, in preparing his appeal, evidently proceeded upon the same theory. It will be unnecessary in this case for us to decide whether or not those statutes apply to the special proceeding of mandamus, because, as we view it, the merits of this controversy cannot be investigated, either under those statutes, or under the practice as it existed prior to the enactment of those statutes. In the statement of the case filed in this court appellant does not state that he desires any particular issues of fact retried, or that he wants the entire case retried. In this state of the record we have repeatedly held that under the provisions of chapter 5, Laws 1897, we were powerless to re-examine the facts in a case tried to the court without a jury. Bank v. Davis, 8 N.D 83, 76 N.W. 998; Ricks v. Bergsvendsen, 8 N.D. 578, 80 N.W. 768; and Erickson v. Bank, (decided at this term) 81 N.W. 46. Some effort is made by counsel to save this point on the ground that the statement was settled by the court pursuant to a stipulation. But plaintiff never stipulated that defendant's proposed statement was in due form, or sufficient to enable him to raise the facts in this court. Nor can the omission from the statement of the case of language which the statute in terms requires should be included therein be aided by anything in the certificate of the judge settling the statement.

But, if we hold that this mandamus proceeding does not come within the terms of the statute regulating trials and appeals in cases tried by the court without a jury, it is equally certain that under the long-established practice under section 5467, Rev. Codes, we cannot examine the testimony. The statement of the case presented to us contains no exceptions to the findings of fact, and no specifications of particulars wherein such findings are not supported by the evidence, or of the errors of law upon which the appellant intends to rely. The section last cited declares: "There shall be incorporated in every such statement a specification of the particulars in which the evidence is alleged to be insufficient to justify the verdict or other decision and of the errors of law upon which the party settling the same intends to rely. If no such specification is made the statement shall be disregarded on motion for a new trial and on appeal." It is clear that the statement must be disregarded, and the facts cannot be investigated. But can we review the ruling upon the motion to quash? Section 5627, Id., reads: "Upon an appeal from a judgment 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 is excepted to or not; nor shall it be necessary in any case to take any exceptions or settle a statement of the case to enable the Supreme Court to review any alleged error which would without a statement appear upon the face of the record." This language was borrowed from Wisconsin. It now appears in section 3070, Rev. St. Wis. 1898, but was the law in Wisconsin...