Anderson v. Standard Accident Insurance Co. of Detroit

SMITH, J. [1,2] Action on an insurance policy. Trial to the court. Findings of fact, conclusions of law, and judgment for plaintiff. This appeal is from the judgment and an order overruling appellant’s motion for a new trial. Respondent in his brief filed April 17, 1915, at the outset contends that the record presents no question for review by this court. There are three purported assignments of error in the record: “First. The court erred in making' findings of fact and conclusions of law in favor of plaintiff upon all the issues. “Second. The court erred in ordering- judgment in favor'of the plaintiff and against the defendant. “Third. The count erred in making findings and conclusions and entering judgment thereon in favor of the plaintiff, for the reason that the evidence does not support said findings and judgment, in the following particulars.” [3-5] Appellant then specifies four particulars in which the evidence is alleged to be insufficient. The first .two assignments present no questions for review. The third assignment is wholly insufficient, for several reasons: First, the record itself fails to show that it contains all of the material evidence submitted at the trial (Smith v. Pence, 33 S. D. 516, 146 N. W. 709; Weller v. Platt, 33 S. D. 509, 146 N. W. 709; Gilfillan v. Schaller, 32 S. D. 638, 144 N. W. 1334 Sweeney v. Hewett, 34 S. D. 302, 148 N. W. 503); second, the record fails to show that there was any specification of error in or attached to the settled record before the trial court upon the motion for a new trial, containing recitals of particulars wherein the evidence was claimed- to- be insufficient [392] (Sweeney v. Hewett, supra) ; third, there is no assignment that the court erred in denying ¡the .m-otion for a new trial (Hazen v. Thompson, 33 S. D. 646, 146 N. W. 1070). The record on appeal is wholly insufficient to present any question for review because of the lack of proper assignments of error. Sorg v. Wells, 33 S. D. 142, 144 N. W. 918. The order and judgment of the trial court are affirmed.