Douglas v. Glazier

Bartholomew, C. J. This is a statutory action to determine adverse claims to real property. The plaintiff claims as the owner of the fee, and the defendant claims under tax sales made in 1897 for the taxes of 1896. The trial court held the taxes and the tax sale valid, and the plaintiff appeals. We find the record on appeal in this case practically identical in all its essential features with the record in Security Imp. Co. v. Cass Co., 9 N. D. 553, 84 N. W. Rep. 477. We have the pleadings, a statement of the case embodying all the evidence offered at the trial, and it is all in the form of a stipulation of counsel, the findings of fact made by the trial court, its conclusions of law, and the judgment. In the statement of the case appellant specifies no issue of fact that he wishes this court to retry, nor does he ask a retrial of the whole case. We are therefore bound by the express terms of section 5630, Rev. Codes, to* hold that every fact found by the trial court was correctly found. We are without jurisdiction to retry any issue of fact. See Security Improvement Co. v. Cass Co., 9 N. D. 553, 84 N. W. Rep. 477, and the authorities there collected. Nor is there any claim made in this case that the conclusions of law and judgment are not warranted by the findings of fact. We have nothing to review. Trae, in his notice of appeal appellant asks this court to retry the issues of fact as to the legality of the taxes for 1896 and the 617 sale thereunder. This court has twice heretofore ruled that such statement in the notice of appeal is entirely ineffectual. Ricks v. Bergsvendsen, 8 N. D. 578, 80 N. W. Rep. 768; Hayes v. Taylor, 9 N. D. 92, 81 N. W. Rep. 49. That the statement of the case must specify the particular issues of fact that appellant desires' this court to retry, or that he desires a retrial of the entire case when such is the fact, has been iterated by this court until it has become monotonous. The matter is jurisdictional. Counsel cannot waive, it, nor can this court. If cases are to be tried anew upon the facts in this court, it can only be done by compliance with the statute that gives this court, sitting as an appellate court, that unusual power. The judgment of the District Court is affirmed. All concur.