Ruble v. Jacobson

• Decision Date: 30 October 1924
• Citation: 51 N.D. 671,200 N.W. 688
• Parties: RUBLE v. JACOBSON.
• Court: North Dakota Supreme Court

51 N.D. 671

200 N.W. 688

RUBLE

v.JACOBSON.

Supreme Court of North Dakota.

Oct. 30, 1924.

Syllabus by the Court.

Where a party moves for a new trial, he must present all grounds which he claims entitle him to a new trial. In other words, he cannot present one ground in the trial court and another ground in the appellate court.

For reasons stated in the opinion, it is held that the action of the trial court in refusing to grant a new trial upon the ground of newly discovered evidence was proper.

Appeal from District Court, Burleigh County; Jansonius, Judge.

Action by E. C. Ruble against E. M. Jacobson. From a judgment for defendant, and an order denying motion for new trial, plaintiff appeals. Affirmed.F. E. McCurdy, of Bismarck, for appellant.

Carr & Rittgers, of Jamestown, and E. T. Burke, of Bismarck, for respondent.

BRONSON, C. J.

This is an action to recover for money loaned and an automobile sold. The defense is payment through exchange. The jury returned a verdict in defendant's favor. Plaintiff's evidence is to the effect that he sold to defendant in May, 1920, an automobile, for $1,375, besides furnishing to him certain accessories therefor; that, in May, June, and July, 1920, he loaned to defendant $1,600, as evidenced by his checks therefor; that no payment has ever been made for the things so sold or the monies so loaned.

Defendant's evidence is to the effect that plaintiff exchanged the automobile, the accessories, and the checks, for, and in payment of, certain notes of a third party secured by a land contract owned by defendant and by him transferred to plaintiff.

Plaintiff's evidence, in response, is to the effect that such notes and contract, so far as they were temporarily delivered to or possessed by him, were held by him simply for purposes of collateral or for collection.

The trial court submitted to the jury the sole question whether plaintiff sold defendant the automobile, and loaned to him $1,600, or took from defendant the notes in exchange.

[2] Plaintiff made a motion for a new trial specifying as the sole ground therefor certain newly discovered evidence set out in affidavits, to the effect that a certain witness had been discovered who would testify to a conversation between the parties wherein plaintiff refused to receive or have anything to do with the notes and land contract concerned. The trial court found that the newly discovered evidence was merely cumulative, and denied the motion. Plaintiff has appealed therefrom and also from the judgment.

Before this court, plaintiff has specified and urged some 10 assignments of error, through which he contends that the trial court erred in receiving evidence of certain transactions prior to the sale or...