Peach v. Reed, 87 Minn. 375

87 Minn. 375 | Minn. | 1902

START, O. J.

Action to recover the possession of the live stock described in the complaint. The result of the trial thereof was a verdict in favor of the defendant that he was entitled to the possession of the property, that it was of the value of $500, and that he was entitled to recover as damages for the detention thereof the sum of $1U. Judgment was entered upon the verdict in accordance with its terms. The plaintiff appealed from the judgment.

The record contains no settled case or bill of exceptions. It consists of the complaint, answer, reply, the judgment, which recites that the action was tried by the court and jury, and sets out the verdict, in full, and the notice of appeal. The only question here attempted to be raised by the plaintiff is that the verdict and judgment are not sustained by the pleadings, in that the answer does not state any defense, but, in legal effect, admits the plaintiff’s title to, and right of possession of, the property. It is not clear that the answer does not put in issue the plaintiff’s right to the possession of the property, but we deem it unnecessary to discuss or decide the question, for the reason that the objection of the defendant that the record presents no questions for review must be sustained.

The office of a bill of exceptions or a settled case is to place in the record matters showing alleged errors which do not appear upon the face of the record proper, which consists of the summons, pleadings, verdict, and judgment. The general rule in most jurisdictions is that any error appearing upon the face of the record proper may be reviewed upon appeal from the judgment or on writ of error without a bill of exceptions or settled case, and that the question whether the pleadings support the verdict and judgment may always be so raised. But the reluctance of this court to sanction the practice of raising the' question of the sufficiency of the pleadings for the first time in this court, instead of raising it by demurrer or on the trial, so that the rights of the parties on the merits may be conserved by an amendment of the pleadings, has led to the adoption of a much stricter rule. Where the appeal is from a default judgment, the question of the sufficiency of the complaint may be raised in this court for the first time, for, the defendant having never appeared in the district court, there can be no presumption that any matter was litigated by consent. In such a case it is to be presumed that the allegations of the complaint were the defendant’s guide in deciding whether he would answer or not. The judgment, however, will be sustained, although the complaint would be held bad on demurrer, if the facts to sustain the judgment can fairly be inferred from the allegations of the complaint. Solomon v. Vinson, 31 Minn. 205, 17 N. W. 340; Doud Sons & Co. v. Duluth Milling Co., 55 Minn. 53, 56 N. W. 463; Northern Trust Co. v. Markell, 61 Minn. 271, 63 N. W. 735; Slater v. Olson, 83 Minn. 35, 85 N. W. 825.

But on an appeal from a judgment in an action tried without a jury, where there is neither a bill of exceptions, nor a settled case, the only question that can be raised is that the findings of fact by the trial judge do not support the judgment. No question as to the sufficiency of the pleadings to support the judgment can be raised. Jones v. Wilder, 28 Minn. 238, 9 N. W. 707; Olson v. St. Paul, M. & M. Ry. Co., 38 Minn. 479, 38 N. W. 490; Abbott v. Morrissette, 46 Minn. 10, 48 N. W. 416; Ahlberg v. Swedish-Am. Bank of Minneapolis, 51 Minn. 162, 53 N. W. 196; Yorks v. City of St. Paul, 62 Minn. 250, 64 N. W. 565; Brigham v. Paul, 64 Minn. 95, 66 N. W. 203; Wheadon v. Mead, 71 Minn. 322, 73 N. W. 975; Stevens v. Stevens, 82 Minn. 1, 84 N. W. 457. The reason for the rule is that error will not be presumed, but, on the contrary, it will be presumed that competent evidence was introduced to sustain the facts found, for the finding is of equal weight with the verdict of a jury. Knoblauch v. Kronschnabel, 18 Minn. 272 (300). And further, if the facts found are not within the issues made by the pleadings, it will be presumed, the record not showing to the contrary, that such facts were litigated by consent.

Counsel for the plaintiff concedes this to be the rule when the cause is tried by the court without a jury, but insists that it has no application when a verdict is rendered by a jury. Why not? The evils and injustice of permitting the question of the sufficiency of the pleadings to be raised for the first time on appeal are the same in each case. In principle it can make no difference whether the facts are found by one man or twelve men. The finding of the facts by the judge is in the nature of a special verdict, which is entitled to no greater presumptions to support it than a general verdict of the jury. It will be presumed, the record not showing otherwise, that all of the facts necessary to support the general verdict of the jury are established by sufficient evidence; and, if they are not alleged in the pleadings, it must be presumed that the parties litigated them by consent, precisely as is done wjiere the facts are found by the judge. The two cases cannot- be distinguished, and if in the one the facts found, although not within the issues made by the pleadings, will be presumed, on review without case or exceptions, to have been litigated by consent, they must also be in the other. Bowers v. Mississippi & R. R. Boom Co., 64 Minn. 474, 67 N. W. 362.

We accordingly hold that on appeal from a judgment, where there is no bill of exceptions or settled case, the only question which can be reviewed is whether the finding of facts by the judge, or the verdict of the jury, as the ease may be, sustains the judgment. The question of the sufficiency of the pleadings cannot be reviewed in either case.

The judgment appealed from in this case follows the verdict, and is sustained by it.

Judgment affirmed.