Schmitz v. Heger

Wallin, C. J. In this action, plaintiff sues to recover money claimed to be due him from the defendant upon contract. There was a jury trial, resulting in a verdict for the plaintiff. Defendant served notice of intention to move in the District Court to vacate the verdict, and for a new trial; but said notice of intention omitted to state any grounds upon which the motion would be based. Later a bill of exceptions was settled, but there were no specifications of error embodied in the bill. In this ' court we find in the brief filed by counsel for the appellant that an attempt [166] has been made to assign errors, as required by rule 15 of the rules of this court. The assignments do not comply with such rule, and could not do so in the absence of specifications of error in the bill. The assignments do not and could not refer to “the page of the abstract where the particular specification of error is fouiid.” Our attention having been called to the condition of the record, we are without power to examine alleged errors of law occurring at the trial, and none other are discussed in appellant’s brief. We have reserved in the rule the right to relax the rule requiring assignments of error, and this we have done in other cases, in furtherance of justice; but we have no power to relax a statutory requirement intended to aid both court and counsel in the court below, as well as in this court. Our attention being called to the omission, we cannot overlook the requirement of the statute that errors must be specified in the bill of exceptions. See section 5090, Comp. Laws; Court Rules Nos. 13, 15, found on pages 12, 13, 3 N. D., and page ix., 61 N. W.; Hostetter v. Elevator Co., 4 N. D. 357, 61 N. W. 49; First Nat. Bank of Devils Lake v. Merchants Nat. Bank of Devils Lake, 64 N. W. 941, 5 N. D. 161; Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659; 3 Estee, Pl. & Prac. § 4896, and authorities cited. (64 N. W. Rep. 943.) The order appealed from is affirmed. All the judges concurring.