Littel v. Phinney

Wallin, C. J. This-action was tried in the district court without a jury, and judgment was entered in that court in favor of the defendants, dismissing the action, and giving other relief. Plaintiff' appeals to this court from said judgment, and in the statement of the case, which purports to embody all of the evidence offered at the trial, the plaintiff asks f.or a trial anew in this court of the entire case. Nevertheless, it appears upon inspection of the record that the statement of the case fails to embrace all of the evidence offered at the trial, and that a portion of such evidence is omitted from the statement. In this condition of the record this court is without lawful authority to try the case anew. Authority to try civil actions anew in this court is derived solely from the statute, and, when the statute is not complied with, this court is devoid of authority to enter upon a new trial of the facts, or upon a reinvestigation of the questions arising upon the evidence. See Rev. Codes 1899, § 5630; also Loan Co. v. McLeod, 10 N. D. 111, 86 N. W. Rep. 110; Kipp v. Angell, 10 N. D. 199; Geils v. Fluegel, 10 N. D. 211. Nor can this court, in cases such as this, proceed tc inquire whether the facts embraced in the findings are justified by the evidence, or whether evidence in the record is or is not admissible under the issues. In this case the conclusions of law and the judgment are justified by the findings of fact. It becomes our duty, theiefore, to affirm the judgment entered below, but in so doing we deem it proper, upon the facts disclosed in the record in this case, to say that the present action is determined without prejudice to any further action or proceedings between the parties which may hereafter be instituted to determine the rights of the parties relating to the subject-matter of the suit, which are set out in the amended complaint, and are left undetermined in this action. Judgment affirmed. All the judges concur.