Sprenger v. Sprenger

• Decision Date: 20 October 1966
• Docket Number: No. 8259,8259
• Citation: 146 N.W.2d 36
• Parties: Ludwig SPRENGER, Plaintiff and Respondent, v. Frederick H. SPRENGER, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 36

146 N.W.2d 36

Ludwig SPRENGER, Plaintiff and Respondent, v. Frederick H. SPRENGER, Defendant and Appellant.

No. 8259.

Supreme Court of North Dakota.

Oct. 20, 1966.

Syllabus by the Court

1. A motion for judgment notwithstanding the verdict calls for a review of the grounds assigned in support of the motion for a directed verdict.

2. When no objection is made for failure to specify with particularity wherein error was made or how evidence does or does not meet requirements, it is waived.

3. Trial de novo in the Supreme Court is available only in law actions wherein a trial by jury has been waived and in equity actions tried without a jury.

4. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury, or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. Rule 39(c), N.D.R.Civ.P.

5. In the instant case jury trial was with the consent of both parties, and therefore the verdict has the same effect as if the trial by jury had been a matter of right.

6. On an appeal from a judgment rendered on a verdict or from an order denying a motion for judgment notwithstanding the verdict or in the alternative for a new trial, in determining the sufficiency of the evidence to sustain the verdict of the jury, the evidence must be reviewed in the light most favorable to the verdict.

7. On an appeal from a judgment rendered on a verdict or from an order denying a motion for judgment notwithstanding the verdict or in the alternative for a new trial, the credibility of the witnesses and the weight to be given to their testimony are questions of fact for the jury to determine.

8. In order to establish an implied trust the evidence must be clear and convincing.

9. Upon an appeal from a case tried to a jury, our review of the facts is limited to a consideration of whether there is substantial evidence to sustain the verdict. If there is such evidence, we are bound by the verdict.

10. For reasons stated in the opinion, it was not prejudicial error for the trial court to refuse to receive in evidence an exhibit offered by the defendant which would have disclosed the record of the Agricultural Stabilization and Conservation Service office as it related to the land in question.

Drey & Tuntland, Garrison, and Vogel, Ulmer & Bair, Mandan, for appellant.

Waldron & Kenner, Minot, for respondent.

ERICKSTAD, Judge (on reassignment).

The amended notice of appeal filed by the defendant, Frederick H. Sprenger, asserts that this appeal is taken from 'the judgment herein and from the whole thereof' and from 'an order denying defendant's motion for judgment notwithstanding the verdict and for a new trial.'

In specifications of error attached to and served with the amended notice of appeal the defendant specified the following as error:

I

Denial of the defendant-appellant's motion for judgment notwithstanding the verdict and a new trial.

II

Insufficiency of the evidence to prove the existence of a 'confidential relationship' between the plaintiff and the defendant, the testimony showing only arms-length dealing between two adults, without confidential relationship.

III

Insufficiency of the evidence to prove an implied trust by clear and convincing evidence, the testimony showing at most no particular preponderance of the evidence either way, and being wholly inadequate to constitute evidence 'clear and convincing.'

IV

Insufficiency of the evidence to negative all other reasonable explanations of the transaction in question, since the evidence clearly shows other explanations as reasonable or more reasonable than the version of the plaintiff.

V

Refusal of the court to receive exhibit 'M' offered in evidence.

As the defendant appealed not only from the judgment but also from the order denying his motion for judgment notwithstanding the verdict or in the alternative for a new trial, we shall first direct our attention to this phase of his appeal.

A motion for judgment notwithstanding the verdict calls for a review of the grounds assigned in support of the motion for a directed verdict. Erhardt v. Gold Seal Chinchillas, Inc., 144 N.W.2d 744 (N.D.1966).

When both sides had rested, the defendant moved for a directed verdict 'for the reasons and on the grounds that the plaintiff has failed to sustain the burden of proof and has not proved an implied trust in this matter.'

Had objection been made in this court by the plaintiff-respondent that the motion for a directed verdict was defective because it failed to specify with particularity wherein error was made or wherein the evidence was insufficient, we would be required to terminate further consideration of this motion at this point. As this objection was not made, we deem it waived.

It is true that when no objection is made by the opposing party for failure to specify with paricularity wherein error was made or how evidence does, or does not, meet requirements, that by raising no objection the opposing party has waived his objection. Clausen v. Miller, 63 N.D. 778, 249 N.W. 791 (discussed in Robbins v. Robbins, N.D., 70 N.W.2d 37). * * *

Sullwold v. Hoger, 110 N.W.2d 457 at 459 (N.D.1961).

The judgment in this case was based upon the verdict of a jury which read as follows

We, the jury duly empaneled and sworn to try the above-captioned action do find in favor of the Plaintiff, Ludwig Sprenger and against the Defendant, Frederick Sprenger and do find that the Defendant holds title to the property in question in trust for the benefit of the Plaintiff.

Although neither side to this lawsuit has placed any significance on the fact that this is an equitable action (to impose a trust in favor of the plaintiff upon two quarter-sections of land held in the plaintiff's father's name and to require an accounting by the father for the income from said land), which normally would be a matter for the court to determine, we believe this should be considered.

Ruel 39(c), N.D.R.Civ.P., becomes pertinent at this juncture. It reads as follows:

Advisory jury and trial by consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.

Before we attempt to construe this rule or consider its application in this case, we believe it is important to note that before the adoption of the North Dakota Rules of Civil Procedure this court in an 1899 decision, discussing the significance of the verdict of a jury in an equity case, held that the 'Newman Law' applied only in common law actions wherein a trial by jury had been waived and in equity actions which were tried by the court without a jury. In other words, it held that in an equity action in which an advisory jury was called and a verdict was rendered by the jury, this court, on appeal, would not try the case anew. Peckham v. Van Bergen, 8 N.D. 595, 80 N.W. 759.

In that case the Court discussed the weight to be given the verdict of the jury as follows:

* * * It is true that the verdict of a jury is not binding upon the court in equity cases. The trial court is vested with a discretion to vacate such verdict in whole or in part, but this does not alter the fact that such verdicts are entitled to receive grave consideration at the hands of trial courts. Juries are not called, even in equity cases, as a mere formality; and their findings are seldom disregarded by courts of chancery, unless the same are clearly wrong. * * *

Peckham v. Van Bergen, supra, 80 N.W. at 761.

In the instant case there is no intimation anywhere in the record or in the briefs of the attorneys that the jury was merely an advisory jury.

The stipulation entered into by the attorneys for the respective parties, after reciting that the defendant was so ill that he could not appear on the date set for the trial of the case and that his appearance was necessary for the trial, concluded with an agreement to the effect that the case should be continued and that the term of the court should be held open until the case could be tried before a jury.

Having no precedent in our State to aid us in the interpretation of Rule 39(c) of our Rules of Civil Procedure, we have resorted to a study of the Federal Rules of Civil Procedure, from which our Rule 39(c) is derived.

Concerning this matter, Barron & Holtzoff has this to say:

The purpose of Rule 39 is to make possible the complete fusion of law and equity in one form of civil action and to permit the time-saving trial of legal and equitable issues at one time without loss or surrender of substantive rights.

If the issues are triable as of right to a jury, jury trial may be had on proper demand, and, in the discretion of the court, may be had even though there was no demand. If there is no right to jury trial, a demand is of no significance. In that event the court may try the case without a jury, or in its discretion may submit the issues to an advisory jury, or, if both parties consent and the court is so minded, may grant a regular jury trial in which all the incidents of jury trial as of right must apply.

The common-sense procedure under the rule is extremely simple. The clerk places upon the jury docket all actions in which a jury trial has been demanded under Rule 38. All issues as to which a jury has been demanded are then tried by a jury unless the parties stipulate for trial to the court without a jury. The judge may transfer from the jury to the non-jury calendar all actions which the parties have consented to try without a jury and all others in which he finds no issues triable by a jury as a matter of right. This finding the judge may make upon his own initiative or upon motion. If the judge does not find that...