Peckham v. Van Bergen

Decision Date18 October 1899
Citation80 N.W. 759,8 N.D. 595
CourtNorth Dakota Supreme Court

Appeal from District Court, Cass County; Pollock, J. Suit by George C. Peckham against W. S. Van Bergen. Judgment for plaintiff and defendant appeals.


Newman Spalding & Stambaugh, for appellant.

Leonard A. Rose, for respondent.



The relief sought by this action is the surrender and cancellation of two promissory notes executed by the plaintiff and delivered by him to the defendant,--one of said notes being for $ 500, and the other for $ 400; also, the cancellation of a certain mortgage covering a house and lot owned by plaintiff, situated at Grandin, N. D., and occupied by plaintiff and his wife as a homestead, which said mortgage was executed by plaintiff and his wife, and delivered to the defendant, as security for the payment of said notes. The complaint alleges, in substance, that said notes and mortgage were given wholly without consideration, and were obtained by duress, undue influence, menace, and fraud practiced upon the plaintiff by the defendant. The answer denies all of these charges, and defendant alleges that the notes and mortgage were voluntarily given by the plaintiff to secure an indebtedness which was in excess of the amount of said notes, and that said indebtedness arose on account of money and property belonging to the defendant which the plaintiff had unlawfully appropriated to his own use. The plaintiff had judgment below, and the defendant, in the statement of the case, has demanded a retrial of the entire case in this Court, under the provisions of section 5630, Rev. Codes, as amended by Chapter 5, Laws 1897.

When the case was called for trial in the District Court, that court announced that it would call a jury, and submit certain questions to them for their verdict,--which verdict, however, the Court stated, would be regarded simply as advisory to the Court. The defendant, by his counsel, objected to the calling of any jury, and to the submission of any evidence to a jury, on the ground that the action was to be tried under section 5630 of the Revised Codes, and that such an action could not lawfully be submitted to a jury. This objection was overruled, and an exception was taken to such ruling. The Court then submitted certain questions in writing to the jury for an advisory verdict, which are as follows: "Was the plaintiff induced by the defendant to execute the notes and mortgage in question (1) by duress; (2) by menace; (3) by fraud; (4) by undue influence?" Defendant here interposed special objections to the submission of said questions to the jury, for the following reasons, viz: That the first called for a conclusion of law, and not a statement of fact; the second is not a proper question to submit to a jury, and is immaterial; and to the fourth, that it is not a proper question to submit to a jury, and calls for a conclusion of law. All of the said objections were overruled by the trial court, and defendant excepted to the ruling. Upon the issues so submitted the respective parties introduced testimony, and the case was argued by counsel to the jury. The Court then instructed the jury, but, inasmuch as such instructions are not embodied in the abstract filed in this Court, we have no means of knowing their nature or terms. The jury answered each of the questions so submitted to them in the affirmative, whereupon the jury was discharged, and the trial court, after receiving further evidence and hearing counsel, --the case being then fully submitted, made and filed its findings of fact and conclusions of law. By such findings the Court, in effect, adopts the verdict of the jury as to three of the questions submitted to the jury, and as to the fourth declines to adopt the verdict of the jury. As to eight of said findings of fact, the defendant has filed exceptions upon the ground that the same, respectively, are not justified by the evidence. Said exceptions embrace no specifications of particulars. But such exceptions are unnecessary in a case where the statement embraces the declaration that the defendant desires a retrial of the whole case in this Court. See Bank v. Davis, 8 N.D. 83, 76 N.W. 998. Upon such findings a judgment was entered below, from which defendant has appealed to this Court.

The record discloses that all the evidence in the case which was offered in the trial court has been incorporated in the statement of the case, and transmitted to this Court; but the further fact appears that, while the evidence was being elicited before the jury, certain evidence was offered, which upon objection thereto being made by counsel, was excluded from the consideration of the jury by the trial court. As the trial progressed before the jury such rulings were of frequent occurrence. But it is also true that it appears that after the jury was discharged the witnesses were recalled and were then permitted to give the evidence before the Court which had been excluded from the jury. Exceptions were saved to this mode of taking the evidence, and the rulings are assigned as error in this Court; and the action of the trial court in submitting the several issues to the jury for a verdict, as already stated, is also assigned as error. These assignments of error devolve upon this Court the duty of passing upon a preliminary question of practice never before raised in this Court. The question is this: Whether section 5630 of the Revised Codes, as amended by Chapter 5 of the Laws of 1897, governs the procedure in the District Court and in this Court in an equity case, wherein the trial court calls a jury to its aid for advisory purposes. It is our opinion that said statutes do not govern in such cases. That the District Court may, at its discretion, call in a jury for an advisory verdict in an equity case, is entirely clear. This is the old and well-established practice in c...

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