149 N.W. 358 | N.D. | 1914
Action to recover on a fire insurance policy. Such policy contains the usual stipulation that “this policy shall be void . . .
1. The evidence is insufficient to sustain the decision.
2. The decision is not sustained by the weight of the evidence.
It needs no argument to demonstrate that such specifications are wholly inadequate and unavailing. The controlling statute — § 4, chap. 131, Laws 1913 — expressly provides that “a specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient.” This is a reasonable requirement of the new practice act, and a substantial compliance therewith will be exacted by this court. The failure to thus comply with such plain statutory rule leads to an affirmance, there being no contention that any errors appear on the face of the judgment roll. Notwithstanding the conclusion thus reached, we have examined the merits sufficiently to satisfy us that the same result would necessarily follow, even if the practice pursued by appellant had complied strictly with the statute. Briefly stated, our reasons are the following:
The case is not here for trial de novo, it being properly a jury case. The findings are therefore entitled to the weight of a special verdict of a jury, and they will not be disturbed where they have substantial support in the testimony. That they have such support is clear. Indeed, counsel tacitly, if not expressly, admit this to be true by the following statement in their printed argument: “The appellant contends that the evidence is insufficient on all points to sustain the decision of the court, the plaintiff's case relying entirely upon their own testimony, while they are contradicted Toy disinterested witnesses as to the facts.”
Concededly, there was a square conflict in the testimony upon the crucial issue of fact, and the trial court, whose function it was to de
Judgment affirmed.