201 N.W. 617 | Minn. | 1925
When the case came back to the district court, defendants renewed their motion for amended findings. The motion was granted, judgment on the amended findings was entered, and plaintiff has appealed from the judgment.
1. At the outset, repeating what has often been said before, we call attention to the rule that an order denying a motion to amend findings is not appealable, whether it is accompanied by a motion for a new trial or not. City of Minneapolis v. Minneapolis St. Ry. Co.
2. Defendants' position is best stated in the language of their counsel, which we take from their brief. They say:
"The court below filed a decision on the merits * * * Its conclusions were not sustained by its findings of fact and opposite conclusions should have been found therein to the effect that plaintiff take nothing by the action. Defendants moved for * * * such opposite conclusions and * * * in the alternative for an order granting a new trial * * * Defendants * * * asked that the * * * finding * * * that the deed from Asp to Fred W. Nash was not delivered to Ledia D. Kirschoff be stricken * * * and for a substituted finding to the contrary.
"In its decision the Supreme Court held that said * * * finding * * * was erroneous * * * that the evidence called for a finding that such deed was delivered to said Ledia D. Kirschoff * * * thereby reversing the order * * * denying defendants' motion to amend. * * * This constituted an approval of defendants' motion and authority of the court below to make findings and enter judgment in accordance therewith. * * * Pursuant thereto, upon the remanding of the case * * * that court ordered an amendment of the findings and conclusions." *411
They add that this court has decided every issue adversely to plaintiff; that there is nothing left to be tried; that another trial could have but one result and that the law does not require parties to do vain and futile things. This line of argument would be unanswerable if the major premise on which it is based were not contrary to the facts. All this court decided when the case was here before was that the trial court erred in denying defendants' motion for a new trial. We pointed out the error which necessitated a new trial, intimated that possibly the deeds in question were made to deprive plaintiff of her marital rights in her husband's property, and added that if there was a scheme to accomplish that result, it could not be shown without pleading the facts constituting the fraud. We did not hold that there was no possibility of recovery and did not direct the trial court to amend its findings or conclusions of law.
In reversing a judgment or order denying a new trial, we sometimes direct the trial court to make proper findings, as in Hunt v. Meeker Co. Abstract Co.
With these rules in mind, we turn to First Nat. Bank v. Towle, *412
Defendants also rely on Kurtz v. St. P. D.R. Co.
The case last cited is decisive and leaves no room for doubt as to the result of the reversal of the order on the previous appeal. The court intentionally reversed without direction, being of the opinion that, by an amendment of the pleadings, an issue not raised by the original pleadings, but probably in the case, might be litigated if the trial court saw fit to allow an amendment.
The judgment is reversed and a new trial granted. *413