Robbins v. Robbins

• Decision Date: 21 April 1955
• Docket Number: No. 7508,7508
• Citation: 70 N.W.2d 37
• Parties: Rose ROBBINS, also known as Mrs. John Robbins, Plaintiff and Appellant, v. William Henry ROBBINS, also known as W. H. Robbins, and as Wm. H. Robbins, Arthur E. Robbins, Ernest Robbins, Beatrice Wiltse, also known as Mrs. Beatrice Wiltse, John H. Robbins, and all other persons unknown, claiming any estate or interest in, or lien or encumbrance upon or against the property described in the complaint, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 37

70 N.W.2d 37

Rose ROBBINS, also known as Mrs. John Robbins, Plaintiff and Appellant, v. William Henry ROBBINS, also known as W. H. Robbins, and as Wm. H. Robbins, Arthur E. Robbins, Ernest Robbins, Beatrice Wiltse, also known as Mrs. Beatrice Wiltse, John H. Robbins and all other persons unknown, claiming any estate or interest in, or lien or encumbrance upon or against the property described in the complaint, Defendants and Respondents.

No. 7508.

Supreme Court of North Dakota.

April 21, 1955.

Syllabus by the Court.

1. A notice of motion for a new trial upon the ground of insufficiency of the evidence must be accompanied by a specification pointing out wherein the evidence is insufficient.

2. A notice of motion for a new trial upon the ground of errors of law occurring at the trial must be accompanied by a specification setting forth a concise statement of the errors of law of which the moving party complains.

3. Error is never presumed on appeal. The burden of showing error affirmatively is upon the appellant.

4. Whether a new trial should be granted upon the grounds of insufficiency of the evidence rests largely in the sound discretion of the trial court and unless an abuse of that discretion is shown the action of the trial court will not be disturbed upon appeal.

5. Where upon a motion for new trial on the ground that the moving party was surprised by evidence produced by his adversary a new trial will not be granted as a matter of right where it appears that the moving party submitted his case without moving for a continuance or asking for an opportunity to procure further testimony.

6. Applications for a new trial on the ground of surprise are addressed to the sound discretion of the trial court and its ruling will not be disturbed in the absence of a showing of abuse of discretion.

L. R. Nostdal, Rugby, Erickstad & Foughty, Devils Lake, for plaintiff and appellant.

Heringer, Nelson & McClintock, Rugby, for defendants and respondents, Ernest Robbins, Arthur E. Robbins, and Beatrice Wiltse.

MORRIS, Judge.

For many years prior to 1947 William Henry Robbins was the owner of one hundred sixty acres of land in Pierce County, North Dakota. On July 3, 1947, he executed a deed purporting to convey all of it to Rose Robbins, the wife of the grantor's oldest son, John. The deed recited a consideration of five thousand six hundred dollars. It was recorded in the office of the register of deeds of Pierce County on September 13, 1947. On August 2, 1947, William Henry Robbins executed four deeds, each one of which purported to convey forty acres of the land described in the first deed in consideration of one dollar and natural love and affection. The grantees in these deeds were, respectively: John H. Robbins, Arthur E. Robbins, Ernest Robbins, and Mrs. Beatrice Wiltse, being all of the children of the grantor. These deeds were all recorded on August 4, 1947. They were filed with the register of deeds by the attorney who drew them.

The plaintiff brought this action to quiet title based on her deed of July 3, 1947, which reserved a life estate in the land in behalf of the grantor, William Henry Robbins.

The defendants answered by a general denial and a counterclaim setting up the deeds conveying a forty acre tract to each of them and asking that title to the respective tracts be quieted in the grantees.

The plaintiff replied to the answer admitting the execution of the deeds and alleging that William Henry Robbins was eighty-seven years of age and although in possession of his mental faculties was easily confused and misled and that the deeds to the answering defendants were obtained by fraud, deceit, and misrepresentation practiced by them upon the grantor and that the deeds were given without consideration.

The case was tried to the court without a jury. The trial resulted in a judgment for the defendants. Neither the court's findings nor that judgment is made a part of this record. No appeal was taken from the judgment, although the case was triable anew in this court upon appeal under the provisions of Section 28-2732, NDRC 1943.

On May 13, 1953, plaintiff's attorney served a motion 'For New Trial and for Vacating Judgment' which was addressed to the judge who tried the case. Due to the illness and subsequent retirement of the trial judge, the motion was by stipulation submitted to his successor. On December 22, 1954, the court entered an order denying the plaintiff's motion. From that order the plaintiff appeals.

This appeal is beset by numerous procedural difficulties. Assuming that a motion for a new trial in a case tried by the court without a jury and triable anew in this court upon appeal under the provisions of Section 28-2732, NDRC 1943 may be made upon the grounds of errors at law occurring at the trial and the insufficiency of the evidence, we proceed to examine plaintiff's motion.

The body of the motion recites:

'Please take notice that the Plaintiff, in the above entitled action, hereby moves the above named court for a new trial in the above entitled action and for vacating judgment entered therein in favor of the defendants on September 24th., 1952 and filed in the office of the Clerk of the District Court of Pierce County, N. D. on said date.

'That said motion for new trial is asked as provided by 1943 RC 28-1902, as amended, and on the memorandum decision of the court, in the above entitled action and the memorandum decision of the court in another case between the same parties involving another tract of land known as the 80 acre State Land case, being case number 4150 of the records of said case on file with the Clerk of this Court.

'1.--Accident or surprise which ordinary prudence could not have guarded against.

'2.--Insufficiency of evidence to justify the decision of the court and that it is against the law.

'3.--Errors in law occurring at the trial, presumed to be excepted to as provided by law.'

No specifications of error or of the insufficiency of the evidence are attached to the motion and as far as this record shows none were ever served or presented to defendants' counsel or the trial court at any time. However, defendants' counsel appeared at the hearing on the motion and argued it and the trial court considered the matters presented orally by counsel without requiring specifications.

The procedure by which a new trial may be obtained is statutory. Section 28-1904, NDRC 1943 provides:

'A motion for a new trial may be made upon the minutes of the court, upon affidavits, or upon a statement of the case. If the motion is made upon the minutes of the court, reference may be had to the pleadings, orders of the court, documentary evidence, stenographic report of the testimony, and any and all other matters that might be incorporated in a statement of the case. In that case either party may procure and have settled a statement of the case and may use the same upon the hearing.'

The provisions of this section are general in nature. The duties devolving upon the party seeking the new trial are more specifically set forth in Section 28-1809, NDRC 1943 which provides:

'A party desiring to make a motion for a new trial or to appeal from a judgment or other determination of a district court or county court with increased jurisdiction, except upon appeals triable de novo in the supreme court, shall serve with the notice of motion, or notice of appeal, a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict or that the evidence is of such character that the verdict should be set aside as a matter of discretion, he shall so specify. A specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient and it shall be proper to include in such specification, specifications of facts conclusively established, together with the facts claimed not to be established, in such manner as to show intelligently wherein, on the whole case, the verdict or decision is not supported by the evidence.'

The second ground of plaintiff's motion is 'Insufficiency of evidence to justify the decision of the court and that it is against the law.' This is a statutory ground in the words of Section 28-1902, paragraph 6, NDRC 1943. The plaintiff failed to point out wherein the evidence is insufficient as required by Section 28-1809, supra.

In Nevland v. Njust, 78 N.D. 747, 51 N.W.2d 845, 849, this court said:

'Under this statute a motion for a new trial presents no question as to whether the evidence is sufficient or insufficient to sustain the verdict unless the moving party presents with, and as a part of, his motion for a new trial the specifications of insufficiency of...