Schulenberg v. Long

• Decision Date: 24 September 1928
• Docket Number: No. 5539.,5539.
• Citation: 221 N.W. 69,57 N.D. 262
• Parties: SCHULENBERG v. LONG.
• Court: North Dakota Supreme Court

57 N.D. 262

221 N.W. 69

SCHULENBERG

v.LONG.

No. 5539.

Supreme Court of North Dakota.

Sept. 24, 1928.

Syllabus by the Court.

On an appeal from a judgment entered on a verdict of a jury, when no specifications of error are served with the notice of appeal, only errors appearing on the judgment roll will be considered.

No motion having been made for a directed verdict by the defendant at the close of the trial and no appeal taken from the order denying his motion for a new trial, the Supreme Court will not review the sufficiency of the evidence to sustain the verdict.

Certain remarks of the trial court and certain instructions to the jury examined and held not prejudicial for reasons stated in the opinion.

Appeal from District Court, La Moure County; Chas. E. Wolfe, Judge.

Action by Ed. Schulenberg, as receiver of the Farmers' National Bank of Le Moure, against Fred Long. From the judgment, defendant appeals. Affirmed.Wm. Maloney, of Fargo, for appellant.

Hutchinson & Lynch, of La Moure, for respondent.

GRIMSON, District Judge.

This is an action upon a promissory note brought by the receiver of the Farmers' National Bank of La Moure upon a note of the defendant, dated November 4, 1924, and found by the receiver as one of the assets of the bank when he took charge in February, 1926. The defense pleaded is that the note was without consideration and given for the accommodation of the bank. Upon the issues so framed, the case was tried to a jury. At the close of the defendant's case and again at the close of the case, plaintiff moved for a directed verdict. Defendant objected and made no motion for a directed verdict. The jury found for the plaintiff as prayed for. A judgment upon the verdict was entered in favor of the plaintiff on the 19th day of November, 1927. Defendant secured extension of time and a stay of proceedings, and on March 23, 1928, brought on for hearing a motion for an order vacating the judgment theretofore entered and for judgment notwithstanding the verdict or in the alternative asking for a new trial. To this motion were attached specifications of error and insufficiency of the evidence. Said specifications, as far as they are not too general to mean anything, were mainly that the evidence was insufficient to support the verdict. On March 23d the court made its order denying said motion, and at the same time made its certificate certifying the transcript and identifying the exhibits. Thereafter the defendant's attorney noticed a motion for an order vacating the order refusing a new trial and for an order granting a new trial, attaching to said notice additional specifications of error and insufficiency of the evidence. These specifications are more specific than the former ones, and include in addition objections to certain instructions of the court. This motion was heard by the trial court on the 13th day of April, 1928, and denied, the court refusing to vacate its former order and further ordering that no new trial be had. No appeal was taken from either order of the court denying a new trial, but thereafter an appeal was taken to the Supreme Court from the judgment. No specifications of error whatever were served with the notice of appeal.

[1] On appeal from a judgment, this court has held that no specifications of error need to be served, but that in such case the only matters considered by the appellate court will be such errors as appear upon the face of the judgment roll proper. Leu v. Montgomery, 31 N. D. 1, 148 N. W. 662;Wilson v. Kryger, 29 N. D. 28, 149 N. W. 721.

[2] In this case, no motion having been made by the defendant at the close of the trial for a directed verdict and no appeal taken from the trial court's orders denying the motions for a new trial, this court cannot pass upon the sufficiency of the evidence to sustain the verdict. The only ways of bringing that matter before this court are by motion for a directed verdict or by motion for a new trial. Morris v. Railway Co., 32 N. D. 366, 155 N. W. 861;Veum v. Stefferud, 50 N. D. 371, 196 N. W. 104;Lofthouse v. Galesburg State Bank, 48 N. D. 1019, 188 N. W. 585;Henry v. Maher, 6 N. D. 413, 71 N. W. 127. No appeal being taken from the court's order denying a new trial, the defendant is bound by said ruling of the trial court. Only intermediate orders of the trial court may be reviewed upon appeal from the judgment. Section 7842, C. L. 1913. In the interest of justice, however, we have examined the record, and are satisfied there was sufficient evidence to sustain the verdict.

[3] Defendant complains of instructions given by the court concerning bankruptcy and also of certain remarks of the court made during the course of the trial concerning the effect of bankruptcy. The defendant objects to these instructions and these remarks, not on the ground that they state the law incorrectly, but on the ground that there was nothing in the case to warrant such remarks or such instructions. It appears, however, that the defense set up lack of consideration, and, in attempting to show the consideration for the note, the plaintiff brought out on cross-examination of the defendant that before he went through bankruptcy the defendant owed the plaintiff bank more than the amount of this note. The court's remarks and instructions were to the effect that bankruptcy only prevented the creditor from using the ordinary remedies upon his note, but that a debt was not wiped out, and that there remained the moral obligation to pay it, which moral obligation would be sufficient consideration for the note if the jury found that the note was given to settle that moral obligation. This is a correct statement of the law. The remarks of the court excepted to were caused by objections of the defendant's attorney. For instance, in objecting to the question asked the defendant as to whether he owed the plaintiff bank any amount before bankruptcy, defendant's attorneys said:

“Objected to as immaterial; the discharge has been pleaded and it is immaterial how much he owed them before that charge.”

The court:

“Well, I don't know as to that-the existence of a debt does not wipe out-the giving them of the note after discharge in bankruptcy, might be a resumption of the old debt.”

This is one of the remarks objected to and is a sample of the others, all of which were brought out as responses to the defendant's attorneys' objections and in explanation of the ruling of the court, all during the examination of the defendant upon the matter of the consideration for the note. The defendant himself brought out the discharge in bankruptcy and introduced it in evidence. A large part of the examination of the defendant, both cross and direct, was directed to show the bankruptcy and what he owed before that. Under the circumstances, we do not deem the remarks of the court or the instructions as given as prejudicial. They stated correctly the law, and the testimony admitted was sufficient foundation for the charge of the court.

The defendant next complains of the instruction of the court upon the claim of the defendant that the note was given for the accommodation of the bank. The court charged on the theory of the decision of the Supreme Court in the case of Vallely v. Devaney, 49 N. D. 1107, 194 N. W. 903, that a receiver could maintain an action upon a promissory note even if it was given to the bank for its accommodation when the circumstances of the giving were that the defendant consented to its being used to keep the bank open, to become a part of the bank's assets, to benefit it, to be used as collateral; that then the defendant is estopped to say that he did not give it for full value, and in such case the verdict should be for the plaintiff. Defendant argues that the facts shown at the trial are not sufficient to bring this case under the theory of the court in Vallely v. Devaney, but that the decision in the case of Baird v. Miller (N. D.) 216 N. W. 340, should control. We, however, think that the evidence sustains rather the theory of the Vallely Case that the note, even if for the accommodation of the bank, was put in there with the knowledge and consent of the defendant that it should be used as an asset and for the purpose of keeping the bank open which would be fraudulently deceiving anybody who examined the bank and making such person believe it was a good and valid asset of the bank. For instance, on the direct examination by Mr. Maloney the defendant makes the following replies (page 38 of transcript):

“Q. Did you have a conversation with T. S. Hunt, at...