Sherwood v. Hill
166 N.W. 228
S.D.
1918
Check Treatment
McCOY, J.

[i, 2] Plaintiff brought this action against defendant to recover damages for alleged failure to construct a *70certain 'dwelling .house according to contract. There was verdict and judgment for the defendant, and plaintiff appeals. There was material conflict in the testimony, and appellant has not properly assigned the insufficiency of the evidence ¡to sustain the verdict as error. Motion for new trial was made upon the minutes of the court. Where the motion for new trial is based on the minutes of the court the specifications of particulars wherein the evidence is alleged to be insufficient must appear in the notice of intention. Section 303, C. C. P., as amended by chapter 173, § 2, Laws 1913. When the record is settled for appeal and errors assigned, the specifications therein contained cannot exceed or be broader or other than as comprehended -within 'specifications appearing in -the notice of 'intention.. In this case no specifications of pa-nt-iculars wherein the evidence was claimed to be insufficient to sustain the verdict appear in the notice of intention. Therefore errors assigned based upon the insufficiency of evidence cannot be considered. Assignments of error are made based on the rejection of' certain testimony, all of which assignments have been, considered, and we are of the opinion that no prejudicial error exists in relation thereto, and that it will serve no useful purpose to further refer to same.

Finding no error in the record, the judgment and order appealed- from are affirmed.