Wood v. Nissen

• Citation: 49 N.W. 103,2 N.D. 26
• Parties: Wood v. Nissen.
• Decision Date: 06 June 1891
• Court: United States State Supreme Court of North Dakota

2 N.D. 26

49 N.W. 103

Wood

v.Nissen.

Supreme Court of North Dakota.

June 6, 1891.

Syllabus by the Court.

1. After an appeal from a judgment in favor of the plaintiff a transcript of the proceedings had at the trial, embracing the evidence as extended by the stenographer, was, by order of the district court, annexed to the judgment roll, and the same was sent up to this court as a part of the record. No proposed bill of exceptions or statement of a case was ever served, and no notice was given to plaintiff's counsel, stating the time and place when and where a bill or statement would be presented to the trial court for settlement and allowance; nor did the trial court make an order purporting to be an order settling or allowing a bill or statement. No attempt was made in the transcript to specify errors of law, or to indicate wherein the evidence is insufficient to justify the findings of fact. Held, that such transcript of the proceedings, embracing the evidence, is neither a bill of exceptions nor a statement of a case, and constitutes no part of the judgment roll; nor is the same an order “involving the merits,” within the meaning of Comp. Laws 1887, §§ 5103, 5237. See De Lendrecie v. Peck, (N. D.) 48 N. W. Rep. 342.

2. A preliminary motion to purge the record by eliminating therefrom the “transcript” aforesaid was granted.

3. No error appearing upon the face of the record proper, the judgment of the court below is affirmed.

Appeal from district court, Cass county; William B. McConnell, Judge.W. L. Eaton, J. B. Cleland, and Tilly & Stewart, for appellant. H. F. Miller and Stone, Newman & Resser, for respondent.

Wallin, J.

In this action, after a trial by the court, a judgment was entered in favor of the plaintiff and against the defendant. The judgment was entered December 16, 1887. An appeal was perfected December 12, 1889. After the appeal was perfected, and on December 18 and 19, 1889, the district court made the following orders:

“On the 18th day of December, 1889, Wm. B. McConnell, judge of the district court, third judicial district, in and for the county of Cass and state of North Dakota, being the judge before whom was tried the above-entitled action, orders that there be added to and made a part of the judgment roll and of the record upon the appeal of the above-entitled action to the supreme court, in addition to the summons, complaint, answer, findings of fact, and conclusions of law, and decree therein, the following papers, which necessarily involve the merits and affect the judgment in said action, to-wit: The transcript of the evidence taken upon the trial of said action, as the same has been extended by the official stenographer, and filed in this court; also the depositions of Henry Lubens, P. K. Eversen, Karen Nissen, and W. E. Owen, produced and read upon the trial of said action; also all the exhibits introduced or offered and excluded on the hearing of said action, which said transcript, depositions, and exhibits constitute all the evidence given upon the trial of said action upon which said findings of fact and conclusions of law and decree were based, together with all the exceptions taken to the rulings and decisions of the court of said trial. Wm. B. McConnell, Judge.”

“I, Wm. B. McConnell, judge of the district court of the third judicial district in and for the county of Cass and state of North Dakota, being the judge before whom was tried the above-entitled action do hereby certify that the judgment rol and record in said action should contain and does contain the following papers, to-wit: The summons and complaint, answer, findings of fact, and conclusions of law, and decree; the transcript of the evidence taken upon the trial of said action, as the same has been extended by...