Tilleny v. Wolverton

• Decision Date: 29 June 1893
• Citation: 54 Minn. 75,55 N.W. 822
• Parties: TILLENY v WOLVERTON ET AL.
• Court: Minnesota Supreme Court

54 Minn. 75

55 N.W. 822

TILLENYvWOLVERTON ET AL.

Supreme Court of Minnesota.

June 29, 1893.

(Syllabus by the Court.)

1. Where, upon an appeal from an order denying a new trial, the order is affirmed, all questions that might have been raised on that appeal are res adjudicata, and will not be considered on an appeal from the judgment entered on the verdict or finding.

2. The objection that the conclusions of law are not justified by the findings of fact may be raised on a motion for a new trial; following former decisions.

Appeal from district court, Hennepin county; Lochren, Judge.

Action by Lydia A. Tilleny against Jacob A. Wolverton and others to cancel a sale of land. Defendants had judgment, and plaintiff appeals. Affirmed.

For reports on former appeals, see 48 N. W. Rep. 908, and 52 N. W. Rep. 909.

C. H. Rossman, for appellant.

Koon, Whelan & Bennett, for respondents.

MITCHELL, J.

This case has already been here twice on former appeals. 46 Minn. 256,48 N. W. Rep. 908; 52 N. W. Rep. 909. The last appeal was from an order denying a new trial. After the affirmance of that order by this court, judgment was entered in the court below on the findings, and this appeal is from that judgment.

It is well settled that where, upon an appeal from an order denying a new trial, the order is affirmed, all questions that might have been raised on that appeal are res adjudicata, and will not be considered on an appeal from the judgment entered upon the verdict or findings. Schleuder v. Corey, 30 Minn. 501,16 N. W. Rep. 401;Adamson v. Sundby, (Minn.) 53 N. W. Rep. 761. Every question attempted to be raised on this appeal might have been, and in fact was, raised on the appeal from the order denying a new trial. The only question which counsel claims is open to him now is that the conclusions of law were not justified by the findings of fact. This question, he contends, was not properly before the court on a former appeal, because not a ground for a new trial. Whatever may be the rule in other jurisdictions, it has long been the common practice, sanctioned by this court, to consider and pass upon this point on a motion for a new trial, and, if the conclusions of law are wrong, to modify them. The practice, although admitted not to be strictly logical, has been sanctioned as convenient and as long settled. Ames v. Richardson, 29 Minn. 330,13 N. W. Rep. 137;Coolbaugh v. Roemer, 32 Minn. 445,21 N. W. Rep. 472;Farnham v. Thompson, 34 Minn. 330,26 N....