United States Savings & Loan Co. v. McLeod
| Decision Date | 02 May 1901 |
| Docket Number | 6731 |
| Citation | 86 N.W. 110,10 N.D. 111 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by the United States Savings & Loan Company against Roderick D. McLeod. Judgment for plaintiff, and defendant appeals.
Affirmed.
Tilly & McLeod, for appellant.
Benton Lovell & Holt, for respondent.
This action was tried in District Court without a jury, and judgment was entered in that court in favor of the plaintiff. Defendant has appealed to this court from such judgment, and in the statement of the case demands a trial anew in this court. Respondent's counsel move in this court for an affirmance of the judgment basing their motion upon the record. A statement of the case was settled in the District Court, to which statement the trial judge has appended a certificate to the effect that the statement contains "all the evidence offered, exhibits introduced, and proceedings had in the District Court," to the making of which certificate, however, an exception was taken by plaintiff's counsel, and the same was brought up on the record.
In support of the motion to affirm the judgment, counsel calls the Court's attention to the record, and particularly to certain exhibits, viz. Exhibits A, D, E, 67; also to Defendant's Exhibits D, E, and L. An examination of the record shows that said exhibits were offered and received in evidence at the trial, and the record discloses the further fact that none of the said exhibits are embodied in the statement of the case; nor does the statement embrace a copy or a purported copy, of any of said exhibits. Each of the exhibits is referred to in the statement of the case, and the references are sufficient to identify the exhibits, and to indicate their character in a general way. In the case of some of the exhibits a reference is made to their contents and a version is given of the substance of their contents but this is not true of all of them. For example, all that is found in the statement about Exhibit E offered in evidence by the defendant is the following: "Defendant's Exhibit E is a prospectus issued by the United States Savings & Loan Company of St. Paul, dated July, 1893." Exhibit E embracing this prospectus, is twice referred to in the brief of appellant's counsel, and the attention of the Court is invited to a careful consideration of the same, as bearing upon the merits of the controversy. The record, as has been shown, falls short in some cases of showing, even in a condensed form, the substance of the contents of certain exhibits; and therefore the statement would, in our judgment, be insufficient as a statement of the case, if it were prepared under § 5467, Rev. Codes, which section has reference to statements framed in jury cases. But that section is not controlling in cases tried to the Court, except as to the formal matters of time and manner. In court cases the contents of the statement, its "structure and component parts," must conform to the requirements of § 5630, Rev. Codes 1899. ...
To continue reading
Request your trial