Motors v. Godfrey, 5976.

• Court: United States State Supreme Court of North Dakota
• Citation: 238 N.W. 550,61 N.D. 435
• Docket Number: No. 5976.,5976.
• Parties: ISENSEE MOTORS v. GODFREY et al.
• Decision Date: 17 October 1931

61 N.D. 435
238 N.W. 550

ISENSEE MOTORS
v.
GODFREY et al.

No. 5976.

Supreme Court of North Dakota.

Oct. 17, 1931.

Syllabus by the Court.

In an appeal from a judgment, where the record consists of the judgment roll, supplemented by exhibits, no statement of the case being settled, the appellate court, in the absence of the evidence, cannot determine whether error was committed in failing to instruct upon a specific issue raised by the pleadings, since the evidence might have been such as to have removed such issue from the jury's consideration.

Syllabus by the Court.

Where a motion for a new trial is made before the trial court, based upon specifications of errors alleged to have occurred at the trial in instructing the jury, any other errors in the instructions are deemed waived and will not be considered on appeal, though assignments thereof be served with the notice of appeal.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by the Isensee Motors, a corporation, against Norman Godfrey and others. Judgment for the defendants on their counterclaim, and the plaintiff appeals.

Affirmed.

[238 N.W. 550]

Earl H. A. Isensee, of Fargo, for appellant.

Emanuel Sgutt, of Fargo, for respondent.

PER CURIAM.

This is an appeal from a judgment entered in favor of the defendants upon a counterclaim in an action in claim and delivery of an automobile. No statement of the case is settled, and the record in this court consists of the judgment roll (sections 7688, 7689 and 7690, Compiled Laws of 1913), supplemented by certain exhibits.

[1] The appellant submits as the principal issues involved in the appeal the instructions

[238 N.W. 551]

given by the trial court to the jury. In addition there are specifications of error predicated upon the failure of the court to instruct upon certain phases of the law governing rescission. Obviously, this court, in the absence of the evidence, cannot determine whether error was committed in failing to instruct upon rescission, for the evidence might have been such as to have wholly removed that issue from the jury's consideration. For an expression of the rule supporting liberal presumptions in favor of the existence of facts to support the action of the trial court, where the evidence is not before the Supreme Court, see Brissman v. Thistlethwaite, 49 N. D. 417, 421, 422, 192 N. W. 85, 86, 87.

[2] The record, for reasons which are equally obvious, precludes this court from considering the various assignments of error...