Parsons v. Rowell

173 N.W. 761 | N.D. | 1919

Lead Opinion

Bronson, J.

This is an appeal from an order refusing to modify a judgment. The only papers before this court, in addition to the pleadings, are: Notice of trial, verdict of the jury, order for judgment, the judgment and notice of entry thereof, statement of costs, objection thereto, motion to modify judgment and order denying the same, order granting extension of time in which to appeal, notice of appeal, undertaking, and specifications of error. No statement of the case has been settled. The entire judgment roll is not even presented. From the complaint it appears that the action was instituted to recover for the negligent destruction by fire of certain stacks of millet and oats. The answer denies negligence and alleges plaintiff’s contributory negligence. It also alleges a tender made to and deposit for the plaintiff of $100, and of a tbresbing bill owing amounting to $40 in settlement, and of plaintiff’s refusal to accept tbe same. It then alleges sucb tender as a counterclaim and demands judgment accordingly. In tbe order for judgment tbe court recites that tbe defendants, before trial, tendered tbe sum of $100, and also tbe satisfaction of sucb tbresbing bill of $40, and that tbe court instructed tbe jury to render verdict over and above sucb $140. Tbe jury returned .a verdict of $128.26 for tbe plaintiff. The court ordered judgment for tbe amount, plus tbe tender so made, and judgment was entered accordingly. The appellants later moved to modify tbe judgment to conform to tbe verdict; from tbe order overruling sucb motion tbe defendants have appealed. In an amended certificate, tbe trial judge states that tbe motion to modify tbe judgment was overruled upon tbe entire record in tbe case, including tbe evidence of deposit and offer of payment of tbresbing bill by tbe defendants, tbe instructions of tbe court to tbe jury wherein tbe court instructed tbe jury that their verdict should be for sucb an amount that they found for tbe plaintiff over and above tbe $100 deposit and tbe $40 thresh bill tendered. This court does not know what evidence was introduced, stipulations made, instructions given to tbe jury, what issues were submitted or withdrawn from the jury, or proceedings bad in tbe trial court. It is well settled that he who urges error in tbe order of tbe trial court, must prepare and present a record of tbe facts upon which the trial court acted. State v. Scholfield, 13 N. D. 664, 102 N. W. 878; Schomberg v. Long, 15 N. D. 506, 108 N. W. 332; State v. Gerhart, 13 N. D. 663, 102 N. W. 880; Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314; Erickson v. Wiper, 33 N. D. 193, 225, 157 N. W. 592.

Even tbe instructions of tbe court, a part of tbe judgment, roll, are not presented. Comp. Laws 1913, § 7689. It was tbe duty of tbe appellant to present a record which affirmatively showed error of tbe trial court in its order; every presumption must be accorded in favor of tbe judgment rendered. Raad v. Grant, — N. D. —, 169 N. W. 588. There is accordingly nothing before this court to review. The order of tbe trial court is affirmed, with costs to tbe respondent.

---

Dissenting Opinion

Robinson, J.

(dissenting). This is an appeal from a judgment on a verdict, and it is for a sum largely in excess of tbe verdict. The appeal is taken on the judgment roll. It presents no evidence, no statement of the case, no findings of fact, nor even the charge of the court to the jury. The complaint avers that in October, 1916, by reason of defendants’ negligence in doing some threshing for the plaintiff, the threshing machine set on fire and burned up grain and straw to the damage of the plaintiff $826. The answer contains a general denial. It avers that the value of the grain destroyed did not exceed $126, and that before the commencement of the action, to avoid costs, the defendant tendered to the plaintiff in cash $100 and a release of $40 due on a thresh bill, and that plaintiff refused to accept the same; and that defendant deposited the money to the credit of the plaintiff. The order for judgment avers that defendant has withdrawn the deposit and release, and therefore judgment was given against the defendant for $140 in addition to the verdict, which reads thus: “We, the jury, find for the plaintiff and assess his damages at the sum of $128.26.” The order for judgment was dated November 24, 1917. On May 8, 1919, and after the appeal was taken, the court made a certificate that he had instructed the jury that their verdict should be for such amount as they found for the plaintiff over and above the $100 deposit and the $40 thresh bill. Now if such an instruction was given, it was erroneous. The tender and deposit was not a payment; it was merely a tender of payment; it was an offer of compromise. Hence the verdict should have been for the actual damages, and the court had no right to hear evidence concerning the deposit and to add $140 to the amount of the verdict, though such an error might have been cause for a new trial. But of course justice should not be defeated by any sharp or smooth practice. Hence the judgment should be reversed, with leave to the court to grant a motion for a new trial, and with costs of the appeal to abide the event.

The judgment should be reversed.

Grace, J. I concur in the result arrived at in the dissenting opinion of Justice J. E. Robinson.