Lead Opinion
This is an appeal by the plaintiffs from a judgment in favor of the defendants for a dismissal of the action. The action was brought to recover certain moneys belonging to the state of North Dakota which it is alleged that the defendant Van Horne received as Motor Vehicle Registrar of the state of North Dakota, and which he thereafter retained as his own. Plaintiffs’ demand is set forth in two causes of action. The first cause alleges that the defendant Van Horne, as Motor Vehicle Registrar received and was paid a salary in excess of that which he was entitled to receive, and the second cause of action is predicated upon the proposition that said defendant Van Horne, while serving as Motor. Vehicle Registrar received and! retained payments made by a private concern for the furnishing to such concern of lists of car registrations and other information of commercial value to such private concern.
The defendant Van Horne interposed an answer that put in issue the material allegations of the complaint, and further alleged that all payments made to the said Van Horne as and for salary were paid upon vouchers duly and regularly presented to and filed with the State Auditing Board and passed upon and approved by such Board in accordance with and reliance upon a written opinion of the attorney general duly made to such Board.
The case was tried to a jury and resulted in a verdict for the de~ *457 fendant Van Horne for a dismissal of tbe action. From tbe judgment entered pursuant to tbe verdict, plaintiffs bave appealed.
Tbe only errors assigned on tbis appeal relate to tbe instructions to tbe jury. It is contended that tbe court erred in giving certain instructions and also that it erred in not giving others.
It is a well-settled rule of general application that “ ‘an appellate court will indulge all reasonable presumptions in favor of tbe correctness of tbe judgment, order, or decree from wbicb tbe appeal is taken. In other words it will be presumed on appeal, in tbe absence of a contrary showing, that tbe trial court acted correctely and did not •err. Indeed error is never presumed on appeal, but must be affirmatively shown by tbe record; and tbe burden of so showing it is on tbe party alleging it, or as sometimes stated, tbe burden of showing error affirmatively is upon tbe appellant or plaintiff in error.’ 4 C. J. 731-733. See also Erickson v. Wiper,
“Tbe burden is on appellant to show that tbe trial court erred in charging tbe jury; and in tbe absence of a contrary showing, tbe appellate ■court will, for tbe purpose of sustaining tbe judgment but not of reversing it, indulge in all reasonable presumptions and intendments in favor of tbe sufficiency and propriety of tbe instructions given to thé jury by tbe lower court.” 5 CJS p. 362.
Tbe record on tbis appeal furnishes no basis for an assignment of •error upon tbe alleged failure of the court to give further instructions. It is admitted that the plaintiffs made no request for any instructions •other than those wbicb were given. It is tbe settled rule in tbis state that in tbe absence of a request for instructions mere nondireetion does not constitute reversible error unless tbe nondirection' is of such na
*458
ture that the failure to instruct amounts to a misdirection. Huber v. Zeiszler,
The assignments of error based upon the instructions given consist of certain quoted portions of the instructions, said to be erroneous, without pointing out wherein they are claimed to be erroneous, or resulted in prejudice to the plaintiffs, .under the evidence in the case. There was no claim in the court below that the verdict is contrary to the evidence; and there is not and could not be any such claim in this court. Jacobson v. Klamann,
The appellants have failed to sustain their assignments of error by the record presented on this appeal.
.Judgment affirmed.
Addendum
(on petition for rehearing). Appellants have petitioned for a rehearing. They contend that this court has overlooked “the fact that the trial court misinstructed upon questions of law that were controlling and bore directly upon the issues framed by the pleadings;” and they assert that the rule stated in ¶ 3 of the syllabus, that absent request for an appropriate instruction “failure to instruct can be urged as error only if in light of the evidence the non-direction constitutes misdirection,” is erroneous.
The questions thus presented by the petition for a rehearing were raised and argued both in the brief and on the oral argument, and were determined by the decision in this case. The petition is, in effect, a restatement and a reargument of matters that were contained in the briefs, called to the attention of the court on the oral argument and determined by the decision, and do not constitute grounds for-rehearing. Rule 16, Rules of Practice,
It is a fundamental principle, which has been declared by this
*459
court many times, that error is never presumed on appeal; and that there rests upon the appellant the burden of affirmatively proving prejudicial error by the record presented to the appellate court. 5 CJS pp. 262-269; Erickson v. Wiper,
The fact that the trial court has erred in admitting certain evidence offered by the defendant does not furnish a valid ground for setting aside a verdict for the defendant and ordering a new trial, where, under all the evidence in the case, the defendant was entitled to a verdict as a matter of law, regardless of whether the evidence erroneously admitted was considered or disregarded. Schnell v. Northern P. R. Co. ante, 369, 1 NW(2d) 56; see also Sorg v. Brost,
“The question whether the trial court’s charge misled the jury cannot be decided without reading the evidence in connection with
*460
the instructions complained of.” Osmundson v. Moore Mercantile Co.
The plaintiffs sought to recover from the defendant, Van Horne, (1) certain moneys which they alleged had been paid to him as salary in excess of that which he was entitled to receive, and, (2) certain other moneys which they alleged had been paid to and retained by him, but which belonged to the plaintiffs. Whether he had received and had retained the moneys alleged, were question’s of fact, and the answer thereto could be found only in the evidence adduced upon the trial. If there was no evidence from which reasonable men in the exercise of reason and judgment could have found that he did receive and retain such moneys, then any error in the instructions as to the amount thereof that he had a right to receive and retain became harmless, and did not affect the verdict. Ross v. Kay Copper Co. 20 Ariz 576,
While the assignments of error are based on the instructions, the actual contention of the appellants is that the defendant, Van Horne, received certain payments in excess of that which he was entitled to receive under the law and that plaintiffs as a matter of law were entitled to recover such moneys. If appellants’ contentions, as to the law and the facts, are correct, plaintiffs would have been entitled to a directed verdict. Tet there was no motion for a directed verdict, nor was there any request for an instruction that the plain *461 tiffs were entitled to recover a certain amount, and there was no motion for a new trial.
Throughout the whole history of this state it has been an established principle, both in civil and in criminal cases, that in an action tried to a jury the question of the sufficiency of the evidence cannot be raised for the first time in the Supreme Court. State v. Empting,
If the appellants had assigned error upon the verdict on the ground that the evidence was insufficient to sustain the verdict or that the verdict was contrary to the evidence and in such assignments had pointed out the specific facts claimed to have been conclusively established by the evidence, and wherein the verdict was contrary to the evidence (Comp. Laws 1913, § 7656), and in support of, or as a part of, such assignments _ had presented a complete transcript of all the evidence, no question would have been presented reviewable in this court. Morris v. Minneapolis, St. P. & S. Ste. M. R. Co.
The assignments of error in this case consist of quotations of certain portions of the instructions. There is not even an attempt to point out wherein the instructions are erroneous.
The statute requires that instructions shall be in writing. Comp. Laws 1913, §§ 7620, 7621. Oral instructions may be given only *462 “with the consent of both parties entered in the minutes.” Comp. Laws 1913, § 7621. When written instructions are given “the court may in its. discretion submit the written instructions, which it proposes to give to the jury, to counsel in the case for examination, and require such counsel after reasonable examination thereof to designate such parts thereof as he may deem objectionable, and such counsel must thereupon designate such parts of such instructions as he may deem improper, and thereafter only such parts so designated shall be excepted to by the counsel so designating the same.” Comp. Laws 1913, § 7620. In such case, “all proceedings connected with the- taking of exceptions shall be in the absence of the jury.” Comp. Laws 1913, § 7621.
Apparently the instructions in this case were in writing. In any event, there is nothing to show that oral instructions were given. The record does .not show whether the instructions were submitted to counsel for examination, so as to require and enable counsel to designate such parts thereof as he might deem objectionable, as provided by § 7620, Comp. Laws 1913. For aught the record presented on this appeal shows, the instructions were so submitted, and counsel made no objection to any part of the instructions.
We adhere to the former opinion and the conclusion reached therein.
A rehearing is denied.