GATES, J.
This cause was tried by the court without a jury. The findings of fact and conclusions of law were in favor of the plaintiff, and.judgment was entered accordingly. A notice of intention to move for a new trial was given. Defendant specified eight certain errors upon which the motion for a new trial would -be based. These alleged errors were all -predicated upon the insufficiency of the evidence to sustain the findings. The motion for a new trial was denied. From the judgment and order denying a new trial, defendant appealed.
In his brief upon appeal, appellant adopts the specifications of error used upon -the motion for a new trial as his assignment of errors upon appeal. The action -of the trial court, however, in denying a new trial is not assigned as error. Respondent. in his brief filed on October 17, 1913, called thé attention of counsel -for appellant to this -defect. Such counsel did not ask -leave -to amend his -brief but ignored the descisions -of this court hereinafter cited and insisted in his reply brief that his assignment of errors was süfficient.
*648It has been consistently held by this court, beginning with the early days of statehood, that where there is no assignment that the.trial court erred in denying- the motion for a new trial this court is precluded from considering the sufficiency of 'the evidence to sustain the findings or verdict. Pierce v. Manning, 2 S. D. 517, 51 N.W. 332" court="S.D." date_filed="1892-02-24" href="https://app.midpage.ai/document/pierce-v-manning-6683156?utm_source=webapp" opinion_id="6683156">51 N. W. 332; Barnard & Leas Mfg. Co. v. Galloway, 5 S. D. 205, 58 N.W. 565" court="S.D." date_filed="1894-04-03" href="https://app.midpage.ai/document/barnard--leas-manufg-co-v-galloway-6683731?utm_source=webapp" opinion_id="6683731">58 N. W. 565; Carroll v. Nisbet, 9 S. D. 497, 70 N.W. 634" court="S.D." date_filed="1897-03-17" href="https://app.midpage.ai/document/carroll-v-nisbet-6684792?utm_source=webapp" opinion_id="6684792">70 N. W. 634; Wolf v. Sneve, 23 S. D. 260, 121 N.W. 781" court="S.D." date_filed="1909-05-21" href="https://app.midpage.ai/document/wolf-v-sneve-6687155?utm_source=webapp" opinion_id="6687155">121 N. W. 781; Williams Bros. Lumber Co. v. Kelly, 23 S. D. 582, 122 N.W. 646" court="S.D." date_filed="1909-09-03" href="https://app.midpage.ai/document/williams-bros-lumber-co-v-kelly-6687220?utm_source=webapp" opinion_id="6687220">122 N. W. 646; Whaley v. Vidal, 26 S. D. 300, 128 N.W. 331" court="S.D." date_filed="1910-10-18" href="https://app.midpage.ai/document/whaley-v-vidal-6687603?utm_source=webapp" opinion_id="6687603">128 N. W. 331; rule 5 of this court (140 N. W. viii).
There being nothing else in the record for us to review, the judgment and order appealed from are affirmed.