Hazen v. Thompson

GATES, J. This cause was tried by the court without a jury. The findings of fact and conclusions of law were in favor of the plaintiff, and.judgment was entered accordingly. A notice of intention to move for a new trial was given. Defendant specified eight certain errors upon which the motion for a new trial would -be based. These alleged errors were all -predicated upon the insufficiency of the evidence to sustain the findings. The motion for a new trial was denied. From the judgment and order denying a new trial, defendant appealed. In his brief upon appeal, appellant adopts the specifications of error used upon -the motion for a new trial as his assignment of errors upon appeal. The action -of the trial court, however, in denying a new trial is not assigned as error. Respondent. in his brief filed on October 17, 1913, called thé attention of counsel -for appellant to this -defect. Such counsel did not ask -leave -to amend his -brief but ignored the descisions -of this court hereinafter cited and insisted in his reply brief that his assignment of errors was süfficient. [648] It has been consistently held by this court, beginning with the early days of statehood, that where there is no assignment that the.trial court erred in denying- the motion for a new trial this court is precluded from considering the sufficiency of 'the evidence to sustain the findings or verdict. Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Barnard & Leas Mfg. Co. v. Galloway, 5 S. D. 205, 58 N. W. 565; Carroll v. Nisbet, 9 S. D. 497, 70 N. W. 634; Wolf v. Sneve, 23 S. D. 260, 121 N. W. 781; Williams Bros. Lumber Co. v. Kelly, 23 S. D. 582, 122 N. W. 646; Whaley v. Vidal, 26 S. D. 300, 128 N. W. 331; rule 5 of this court (140 N. W. viii). There being nothing else in the record for us to review, the judgment and order appealed from are affirmed.