More v. Burger

• Decision Date: 15 March 1906
• Parties: MORE et al. v. BURGER et al.
• Court: North Dakota Supreme Court

15 N.D. 345

107 N.W. 200

MORE et al.

v.BURGER et al.

Supreme Court of North Dakota.

Feb. 14, 1906.

Rehearing Denied March 15, 1906.

Syllabus by the Court.

Where an action is properly triable to a jury, but a jury is expressly waived, and it is tried under section 5630, Rev. Codes 1899, and all the evidence that is offered is received, although some of it is objected to, this court will not remand the cause for another trial under said section, which authorizes this court to grant another trial where necessary to the accomplishment of justice.

The reception of such evidence under such circumstances, although it may be error, does not authorize a new trial under said section, but is an error of law occurring at the trial which must be objected to, excepted to, specified as error in the statement of the case, and assigned as error before the same will be reviewed in this court.

An amendment of a complaint after notice and about 60 days before the trial, which does not substantially state different facts, is permissible, although the prayer of the original complaint is one applicable to claim and delivery proceedings and that of the amended complaint pertains solely to a demand for damages for the conversion of the property.

A demand followed by a refusal to deliver property is only evidence of a conversion and need not be made before the commencement of the action in case a demand would be obviously unavailing, as when, by pleading and proof, the property is shown to be detained under a claim of absolute right.

Appeal from District Court, Ward County; L. J. Palda, Jr., Judge.

Action by A. Y. More and John L. More against R. B. Burger and L. W. Movius. Judgment for plaintiffs, and defendants appeal. Affirmed.George H. Gjertsen (Newton & Dullam, of counsel), for appellants. Jerome Parks, for respondents.

MORGAN, C. J.

The original complaint stated facts that would constitute a cause of action in claim and delivery, and the relief asked for was for the delivery to the plaintiffs of the property described in the complaint, or for its value, with damages for its detention in case a delivery of the possession of the property could not be had. Nearly 60 days before the trial came on, and after the defendants had answered the complaint, plaintiffs gave notice of an application for leave to amend the complaint, and the amendment was allowed after a hearing on the motion. The facts alleged in the amended complaint are substantially the same as those of the original complaint. In each the plaintiffs claimed a lien upon the property by virtue of a chattel mortgage on the growing crop, which the defendants are alleged to have taken into their possession and converted after the same had been harvested and threshed. The prayer of the amended complaint, however, does not ask for the delivery of the possession of the grain to the plaintiffs, but simply asks for damages equal to the value of the property. There was a trial of the issues to the court without a jury, a jury having been expressly waived by a written stipulation filed with the clerk. On the trial there were numerous objections to the admission of testimony, but no rulings on such objections except in one instance, and that objection was overruled and the testimony received. No evidence was excluded at the trial. The parties evidently understood that they were trying the case under section 5630, Revised Codes 1899, although it was tried after chapter 201, p. 277, Laws of 1903, amending said section 5630 went into effect. This amendment excepts from the operation of said section all actions properly triable with a jury. The trial court made findings of fact and conclusions of law in plaintiffs' favor and judgment was entered thereon. The defendants appeal from the judgment and ask for a review of the entire case under section 5630, Revised Codes 1899.

A statement of the case was settled in which are found specifications of errors which relate mostly to alleged error by the trial court in not making findings as to specified facts in defendants' favor. The statement of the case contains no specification of the particulars in which the evidence fails to sustain the findings generally, hence the statement is not prepared in accordance with the statute, and must be disregarded when the failure of the evidence to sustain the findings is not particularly pointed out. Section 5467, Rev. Codes 1899. Nor can the evidence be reviewed in its entirety to determine whether the findings are sustained or not, as the case was not properly tried under section 5630, Revised Codes 1899.

It is claimed that there was a mistrial and that the cause should be remanded for a new trial in order that justice may be done between the parties. The amendment of section 5630 by the 1903 law does authorize a new trial to be granted if the court deem such course necessary “to the accomplishment of justice.” But the admission of incompetent or irrelevant testimony has never been construed to authorize a new trial under said section. The evidence was all received without objection or exception. Receiving such evidence was an error of law occurring at the trial, and has never been treated as authorizing this court to pronounce the trial a mistrial. Where mistrials have been found to require the remanding of the case for a new trial under section 5630, Revised Codes 1899, the cases were properly triable under that section and for some reason there had been a mistrial. In this case the appeal must be determined on errors properly specified and assigned. The errors claimed in trying the case under section 5630, and in receiving improper evidence, are nowhere specified or assigned, hence they cannot be considered as grounds for declaring that there was a mistrial, or that the court committed error in receiving such evidence.

It is claimed that the amendment of the complaint was unauthorized. The alleged error is specified properly in the statement of the case, and the order allowing it is therefore reviewable as appearing on the face of the judgment roll, and it is assigned as error in the brief. The claim is made that the cause of action was entirely changed by the amendment and a new one substituted. The original complaint stated facts which would authorize a judgment for the return of the property to the plaintiffs based on the fact that they held a chattel mortgage lien thereon under which they were entitled to the possession of the property, and that the defendants unlawfully took possession thereof, and converted the same to their own use. The amended complaint stated the same facts pertaining to the mortgage lien and their right to the possession of the property; and also that the defendants...