Thompson v. Cunningham
| Decision Date | 26 April 1897 |
| Citation | 71 N.W. 128,6 N.D. 426 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Templeton, J.
Action by Joseph Thompson against D. C. Cunningham. Judgment for plaintiff. Defendant appeals.
Affirmed.
J. H Bosard, for appellant.
Cochrane & Feetham, for respondent.
This is an action to recover damages for certain grain which the plaintiff claims was willfully destroyed by the defendant. There was a verdict for the plaintiff, awarding damages in the sum of $ 250. A statement of the case was settled embracing three specifications of error, which may be summarized as follows: First, that there was no evidence showing that the grain destroyed was of any value, and the evidence showed that the grain was of no value; second, that the damages were excessive, and appeared to have been awarded by the jury under the influence of passion and prejudice, in this: that there was no evidence showing that the plaintiff was damaged in the sum of $ 250, or in any amount; third misconduct of the jury. The learned trial court, in its certificate settling the statement of the case, states: "It is hereby certified that the foregoing statement of the case contains all the evidence adduced at the trial, and all the proceedings had therein necessary to present the questions and exceptions relied on by the parties to this action." Upon the statement of the case the defendant moved in the trial court to vacate the verdict, and for a new trial of the action. The motion was denied, and from the order denying the motion the defendant has appealed to this court.
The case was submitted to this court upon briefs, and without oral argument. Appellant has made no assignments of error in this court, as required by rule 15 of the rules of this court. 61 N.W. ix. In appellant's original brief there is an entire absence of any assignments of error upon either of the three specifications of error embodied in the statement and already referred to. Appellant's original brief contains a very able argument, and one apparently well fortified by authority, upon a feature of the case which we shall hereafter notice, but no allusion is made in appellant's said brief to either of the points suggested by the specifications of error. On the contrary, such points are neither assigned as error nor alluded to in that brief. The errors specified in the statement having been thus completely ignored by the appellant, and neither assigned, discussed, nor referred to in this court by counsel, we are not at liberty, under established rules of practice, to consider or determine the questions arising upon the statement of the case. It is in fact perfectly obvious that the appellant's counsel in his original brief intentionally abandoned all of his specifications of error, and did not desire or expect this court to pass upon the same, or either of the same. Under the circumstances, we shall be compelled, under the established practice, without reference to the merits of the points raised by the specification contained in the statement, to rule the same adversely to the appellant. In this case however, we can say that we have carefully read the record, and find that, while the evidence which bears upon the question of the value of the grain destroyed is very conflicting, there is competent evidence in the record tending to show that the grain which defendant admits he destroyed was of the value found by the jury, and, therefore, that there is no evidence that the verdict was rendered under the influence of passion and prejudice. We find no evidence in the record tending to show that the jury were guilty of "misconduct." The affidavit upon which this feature of the motion for a new trial was originally founded has not been preserved in the abstract, and we are therefore unadvised as to its contents. Besides, as has been said, no error is assigned in this court upon this feature of the case, nor is it mentioned in either of appellant's briefs. An inspection of the record transmitted to this court discloses the fact that the record does not embrace any of the instructions given to the jury by the trial court, nor can we find that any ruling made during the trial was challenged by an exception. If the District Court was requested at the trial to give an instruction to the jury of any character, the fact of such request does not appear of record, nor does it appear that either side moved for a directed verdict. In this court counsel does not, in the original brief, complain of any ruling made by the court below, nor that the verdict is without support in the evidence with respect to any feature pointed out in the statement. Appellant argues in his original brief that the case should be reversed in this court because, as he contends, the evidence shows that the plaintiff, at the time the defendant destroyed the property, was not the owner of the same. Whether this contention was or was not developed at the trial, it is certainly true that no trace of it can be found in the record. The statement embraces only so much of the evidence as, in the opinion of the trial court is deemed "necessary to present the questions and exceptions relied on by the parties to this action." The questions "relied on" by the appellant can embrace only those specified in the statement of the case. With respect to any and all other questions which may have arisen at the trial, there is nothing to show that all the evidence concerning them is embraced in the statement. On the contrary, the plain inference from the language of the statement is that the evidence upon uncontroverted points is excluded from the record, as it should be in all cases...
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