84 N.W. 552 | N.D. | 1900
Lead Opinion
This is a statutory action to determine adverse claims to real property. The plaintiff claims as the owner of the fee, and the defendant claims under tax sales made in 1897 for the taxes of 1896. The trial court held the taxes and the tax sale valid, and the plaintiff appeals.
We find the record on appeal in this case practically identical in all its essential features with the record in Security Imp. Co. v. Cass Co., 9 N. D. 553, 84 N. W. Rep. 477. We have the pleadings, a statement of the case embodying all the evidence offered at the trial, and it is all in the form of a stipulation of counsel, the findings of fact made by the trial court, its conclusions of law, and the judgment. In the statement of the case appellant specifies no issue of fact that he wishes this court to retry, nor does he ask a retrial of the whole case. We are therefore bound by the express terms of section 5630, Rev. Codes, to* hold that every fact found by the trial court was correctly found. We are without jurisdiction to retry any issue of fact. See Security Improvement Co. v. Cass Co., 9 N. D. 553, 84 N. W. Rep. 477, and the authorities there collected. Nor is there any claim made in this case that the conclusions of law and judgment are not warranted by the findings of fact. We have nothing to review. Trae, in his notice of appeal appellant asks this court to retry the issues of fact as to the legality of the taxes for 1896 and the
Rehearing
PETITION EOR REHEARING.
Counsel makes a vigorous protest by way of a petition for rehearing against the manner in which the court has construed the abstract in this case. But, from a careful reconsideration of the abstract, we are of opinion that counsel’s criticisms are misplaced. The abstract recites that “the statement of the case, as settled and allowed, shows affirmatively that it contains all the evidence which was offered or submitted on the trial of the case.” It then proceeds to set out the entire testimony. This course was consistent only with a purpose to obtain a retrial on the facts. But,’ as the statement of the case as printed did not indicate for what purpose the appeal was taken, we went to the record, and there found, as stated in the opinion, that in his notice of appeal appellant expressly demanded a retrial of certain issues of fact. While this demand, under the statute, was nugatory by reason of its place in the record, yet it served to indicate what was in the appellant’s mind, and for what purpose the appeal was taken, and the purpose so indicated was entirely consistent with the manner in which the statement had been prepared. The court decided the case on the line thus indicated by the statement, and was entirely warranted in so doing. Now, however, counsel urges that he never desired a retrial of any fact issue, but only the review of certain law questions. Since, concededly, the facts are properly found, the errors, if any, must necessarily consist in making some improper or unwarranted deductions from such findings of fact. But we cannot consider these questions because none of the findings of fact are presented in the abstract. True, there is in the abstract an assignment of errors in the following words: “The court erred in sustaining the sales for the taxes for the year 1896, for reasons as-follows: (1) The state levy was void. It was an exercise of legislative authority, and the state board of equalization had no authority to levy the tax. (2) The sales were made before the tax became delinquent, a year prior to the sales for thé year 1895, and they were not made under the direction of the board of county commissioners. (3) The county commissioners did not designate a newspaper for the publication of delinquent tax list; there was no newspaper called the ‘Fargo
