84 N.W. 477 | N.D. | 1900
Lead Opinion
This action is brought to quiet the title to certain parcels of land situated in the city of Fargo. The plaintiff owns the fee ,and the real purpose of the action is to cancel certain taxes or apparent taxes charged against the land in the years 1892 to 1898, inclusive, and also to vacate certain tax sales of the land, made upon such taxes. Defendant answered the complaint. The answer alleges in substance that all of said taxes and tax sales were regular and in all respects valid. The action was tried to the court and submitted for its determination, whereupon the trial court made and filed findings of fact and conclusions of law whereby it was adjudged that some of the tax levies and some of the tax sales in question were illegal and void, and that others involved were in all respects valid levies and sales; and judgment was directed to he entered pursuant to such findings, and judgment was entered accordingly. The plaintiff has appealed to this court from all parts of said judgment which are adverse to the plaintiff. Defendant has not appealed.
A statement of the case embracing all of the evidence offered at the trial was settled and allowed, and the same has been incorporated with the judgment roll and transmitted to this court. The statement omits to include any demand of a retrial in this court either of the entire case or of any specified fact in the case. The procedure which was had in the action in the court below was necessarily
Counsel for appellant has filed a brief in this court, in which he repeatedly calls attention to the evidence in the record, and attempts to point out wherein the trial court, as counsel claims, erred or was mistaken in finding the facts which that court found as ultimate facts, and included in its findings of fact. Counsel calls attention to the fact that it appears that the evidence submitted below is undisputed, and was in fact stipulated by counsel, except as to the testimony of one witness who testified for the plaintiff. Counsel now urges this court to look at the evidence, and claims that upon an examination of the evidence this court will not fail to deduce ultimate facts therefrom which will differ radically from those deduced by the trial court. But, on the other hand, counsel for the respondent has, in his brief, called the attention of the court to the same evidence, and argues in his brief that the trial court was fully justified by the evidence in making the findings of ultimate fact which were filed in the court below. Counsel asserts in his brief that there is no question of evidence in the case. It is, however, manifest that counsel for the appellant is seeking in this court to alter and reverse the findings‘of fact made below; and, to accomplish this object, counsel urges that the undisputed evidence — embracing a mass of stipulated evidential facts — will, upon a proper consideration thereof by this court, lead to a reversal of the findings and judgment. But in the case at bar it has been seen that this court is precluded from a trial of any of the facts embraced within the issues. Nor can this be different in a case where the evidential facts were stipulated, and, as stipulated, were presented to the trial court. It appears that despite the stipulation the trial court found the ultimate facts to be quite different from those which counsel for plaintiff would deduce from such evidential facts. It was the province and duty of the trial court to weigh and consider all the evidence, excluding that which was incompetent, and from the evidence deduce the ultimate facts upon all the issues involved. See Gull River Lumber Co. v. School Dist. No. 39, 1 N. D. 500, 48 N. W. Rep. 427. It must
Rehearing
ON PETITION FOR REHEARING.
In this action counsel for the appellant has filed a petition in this court which embraces a variety of features. Counsel asks — First, that this court shall grant a reargument of the case in this court; and, secondly, if the reargument is denied, that this court will remand the record to the District Court, to enable counsel to apply to that court for leave to incorporate a new feature in the statement of the case; thirdly, if the last-mentioned request is denied, counsel asks that the appeal be dismissed without prejudice to another appeal; and, finally, counsel asks, if each and all of his said requests are denied, that counsel may be permitted to amend, under section 5625, Rev. Codes, to cure the radical defect now existing in the statement of the case. Counsel contends with his accustomed vigor and earnestness that he should be permitted to reargue the case for the reason that the point upon which this court has decided the case was not suggested on the argument' either by counsel or by any member of the court, and this ground is true in point of fact. But it appears in the original opinion that this court affirmed the judgment of the court below solely upon the ground that this court, upon this record, was not only without lawful authority to consider and determine the facts anew, but was further, under section 5630, Rev. Codes, commanded in such a case to rule that the facts as found and decided by the court below were “properly decided.” It therefore appears that in the case at bar the court was, under the express terms of an unambiguous statute, forbidden to'sit as a trial court to hear the evidence and determine the facts. This being the law of the state, this court is bound by it; nor can authority to try any case on the evidence de novo be conferred, either by amicable arrangements between counsel, or otherwise than as the law directs. Upon this point, see Montgomery v. Harker (decided at this term), 84 N. W. Rep. 369; also, Thuet v. Strong, 7 N. D. 545, 75 N. W. Rep. 922, and cases cited in the original opinion in this case. It is true, this court did not at the argument call attention of counsel to the omission in the statement of any demand for a retrial of the facts. This omission cannot operate, however, to confer lawful
The remaining requests of the petition must also be denied. The case next cited below is squarely on all fours with the case at bar. See Ricks v. Bergsvendsen, 8 N. D. 578, 80 N. W. Rep. 768. In the opinion in that case this court said: “The case was tried under chapter 5 of the Laws of 1897, and is governed by its provisions, which are unambiguous and simple in their requirements. The mandate of the statute is explicit and inexorable. The statement itself must contain the specifications as above indicated, and this court so held in Bank v. Davis, 8 N. D. 83, 76 N. W. Rep. 998. Nor does the statute admit of a construction to the effect that the required specifications can be incorporated either in a notice of appeal or in a judge’s certificate, as was attempted here. Such is not the language of the statute. A simple observance of the provisions of the statute of 1897 in making up the record sent to this court would have insured a retrial of the action in this court upon the merits; but, upon the record as it exists, no review of the case upon the evidence can be had without a violation of the existing law, permitting this court to sit as a trial court in certain cases only. The exceptions filed below were wholly superfluous, and could not be considered in this court, even if the whole case could be reviewed. See Bank v. Davis, supra.” In the Ricks Case, as in this, counsel, in a petition fór a rehearing, urged this court to grant an opportunity for amending the statement under the provisions of section 5625, Rev. Codes. In denying such request this court used language which is directly applicable to the facts here. We said: “Counsel cites section 5625 of the Revised Codes, and claims that under said section it is the duty of this court to transmit the record, with a view to the perfection of the appeal, and to make the same effectual. But counsel in this case is not seeking to perfect the appeal or to make it effectual. The validity of the appeal is not at all involved in any object which counsel is seeking to attain. The citation is therefore not in point. The petition for a rehearing and the said request of counsel are denied. The other judges concurring.” The petition is in all respects denied.