State ex rel. Harding
| Decision Date | 25 April 1931 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Steele County, Swenson J.
Affirmed.
Theo. B. Elton, for appellant.
"A contract of guaranty, like every other contract, can only be made by the mutual assent of the parties." German Sav. Bank v. Drake Roofing Co. 51 L.R.A. 758; Davis v. Wells-Fargo, 104 U.S. 159, 26 L. ed. 686; Davis Sewing Mach. Co. v. Richards, 115 U.S. 524; Standard Sewing Mach. Co. v. Church, 11 N.D. 420, 92 N.W. 805; Rogers Lumber Co. v. Clark, 52 N.D. 607, 204 N.W. 184.
McIntyre & Burtness, for respondent.
"On an appeal from a judgment this court has held that no specifications of error need be served but in such case the only matters considered by the appellate court will be such errors as appear upon the face of the judgment roll." Schulenberg v. Long, 57 N.D. 262, 221 N.W. 69; Leu v. Montgomery, 31 N.D. 1, 148 N.W. 662; Wilson v. Kryger, 29 N.D. 28, 149 N.W. 721.
"Assignments of error not argued in appellant's brief are deemed abandoned." Foster County Implement Co. v Smith, 17 N.D. 178, 115 N.W. 663; Kennedy v. State Bank, 22 N.D. 69, 132 N.W. 657; Willoughby v Smith, 26 N.D. 209, 144 N.W. 79; Beauchamp v. Ins. Co. 38 N.D. 483, 165 N.W. 545; Anderson v. Elevator Co. 51 N.D. 730, 200 N.W. 905; Masset v. Schaffner, 31 N.D. 579, 154 N.W. 653; Feil v. N.W. German Farmers Mut. Ins. Co. 28 N.D. 355, 149 N.W. 358.
"A bond and the contract of the surety thereon becomes effective when executed and delivered, the same as is true of any other contract and this is particularly true where the bond is an official bond." U.S. F. & G. Co. v. Riefler, 239 U.S. 17, 60 L. ed. 121.
The findings of fact are presumed to be correct and will not be disturbed unless shown to be clearly opposed to the preponderance of the evidence. Baird v. Goforth, 54 N.D. 805, 211 N.W. 587; Bank v. Maier, 34 N.D. 259, 158 N.W. 346; Griffith v. Fox, 32 N.D. 650, 156 N.W. 239; Anderson v. Ressler, 57 N.D. 655, 223 N.W. 655.
This is an action brought by the Board of Railroad Commissioners upon a certain warehouseman's bond given by Isaac Hegge as principal and the defendants herein as sureties, in order that Hegge could engage in the business of buying, selling and storing grain for profit, and maintain a grain elevator therefor. The bond was delivered to and accepted by the board and thereupon the license was issued to Hegge as a public warehouseman. The terms of the bond began August 1, 1923, and terminated July 31, 1925, and during such time grain was delivered to Hegge, who issued warehouse receipts therefor. In addition thereto there were outstanding storage tickets, and it is alleged that on April 10, 1927, the owners of the storage tickets made a demand upon Hegge for delivery of the grain; that he failed and refused and neglected to make the delivery; that the said Hegge is insolvent and that this action was brought for the benefit of the holders of the storage tickets. Judgment was asked in the sum of $ 3,234.09 with interest.
The defendant Dean answered separately, admitting that Hegge maintained a grain elevator and bought grain but denies Hegge applied for a State warehouse license. Appellant denies he ever executed any bond and alleges that if his name appears attached to any such instrument his signature was obtained by fraud and deceit practiced by Hegge. He denies also the claims of some of the alleged holders of storage tickets, and alleges that others of them agreed with and permitted the said Hegge to ship out and dispose of the grain represented by the tickets, that for more than three years subsequent to the expiration of the period for which the bond was given the principal on the bond was permitted by the respondents to dispose of his property and abscond from the State, and they took no steps to see that the warehouseman complied with his duties and thus prejudiced the defendant so that he had no recourse against Hegge; and that no demand was ever made upon Hegge to make good any liability.
A jury was waived, and the case tried to the court who made findings of fact and conclusions of law favorable to the plaintiffs. From the judgment entered in favor of the plaintiffs the defendant Dean appeals.
Notice of entry of judgment was served upon the appellant on January 21, 1930. The notice of appeal is dated July 21, 1930, and was served upon respondent on that day. This notice says: the appeal is taken "from the judgment of the above court made, rendered and entered in the above entitled action on the 8th day of January, 1930, in favor of the said plaintiff and against the said defendants, jointly and severally, and that their appeal is from the said judgment and the whole thereof." No specifications of error were served with the notice of appeal, nor have any specifications of error ever been served or filed in this case.
The case was placed on the March 1931 calendar of this court and submitted upon briefs.
On March 19th, 1931, the appellant served upon the respondents an application for leave to file "amended" specifications of error and attached thereto proposed specifications to the effect that the trial court erred in denying defendants' motion for dismissal of the action; in ordering judgment for the plaintiffs and, further, that the evidence is insufficient to sustain judgment of the court in this: "that the evidence clearly shows that no demand was ever made for the grain represented by the storage tickets involved in the action and described in the complaint or for payment of such storage tickets until long after the expiration of the bonds sued upon, and further that the evidence fails to establish that Isaac Hegge was insolvent during the period that such bond was in force and effect."
The plaintiffs strenuously object to such permission being granted, particularly upon ground of the delay in the taking of the appeal and having it heard, and making the application after submission of the case. Respondents say the appeal was taken on the very last day upon which an appeal could be taken, that the record was not sent to this court until seven months thereafter, that during all of this time no specifications of error were made or served -- except such specifications of error as the appellant assigns in his brief, -- that no showing has been made why appellant should be relieved from default and respondent claim the appellant is not entitled to discuss or argue any errors except such as appear on the record.
It is well settled that "where in an action properly triable to a jury the appellant fails to make any specifications of error or specifications of insufficiency of the evidence, the appeal does not present to the supreme court the question of the sufficiency of the evidence to sustain the findings of fact made by the trial court." Anderson v. Osborne-McMillan Elevator Co. 51 N.D. 730, 200 N.W. 905. See also Wilson v. Kryger, 29 N.D. 28, 149 N.W. 721; Massett v. Schaffner, 31 N.D. 579, 154 N.W. 653. This is in harmony with the theory that "an action properly triable to a jury, but tried to the court without a jury, is not triable anew in the Supreme Court." Anderson v. Osborne-McMillan Elevator, Co. 51 N.D. 730, 200 N.W. 905; Lloyd Mortg. Co. v. Davis, 51 N.D. 336, 36 A.L.R. 465, 199 N.W. 869.
It is true that the default or failure to serve may be cured upon an application to this court when the court is satisfied that the furtherance of justice demands it. Service is not a jurisdictional pre-requisite to appeal. Wilson v. Kryger, 29 N.D. 28, 149 N.W. 721, supra.
Where no specifications of error are served with the notice of appeal from a judgment in a case triable to a jury this court will consider only such errors as appear upon the judgment roll. See Schulenberg v. Long, 57 N.D. 262, 221 N.W. 69; Leu v. Montgomery, 31 N.D. 1, 148 N.W. 662; Wilson v. Kryger, 26 N.D. 77, 51 L.R.A.(N.S.) 760, 143 N.W. 764.
In his brief appellant argues six specifications of error: (1) Error of the court in holding that the complaint states facts sufficient to constitute a cause of action; (2) error based on the receipt of testimony because the complaint did not state a cause of action; (3) overruling objections to the receipt in evidence of exhibits 4 to 10, inclusive; (4) denying defendants' motion for dismissal of the action (5) the same repeated on another motion; and (6) ordering judgment for the plaintiff. In the brief appellant abandons the first three. The only addition in the proposed "amended" specifications of error is the insufficiency of the evidence on the two points heretofore set forth -- that no demand was made for the grain "until long after the expiration of the bond sued upon;" and failure of proof to establish that "Hegge was insolvent during the...
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