Murphy v. Foster

Morgan, C. J. Action upon a promissory note given for the purchase price of one Monarch self-feeder. Defendant alleged that the self-feeder was purchased under a warranty, that there was a breach of such warranty, that the machine was returned to plaintiff in pursuance of the terms of the warranty, and that the contract was thereby rescinded. The trial court directed a verdict for the defendant. Judgment was rendered on the verdict, and plaintiffs have appealed from the judgment. The errors relied on for a reversal of the judgment are that the court erred in directing a verdict for the defendant, and that it erred in refusing to strike out certain evidence duly objected to. We cannot review the action of the trial court in reference to these questions. No statement of the case was settled. The abstract does not recite that a statement of the case was settled. In this case we have examined the original record on the appeal, and find that it fails to show a settlement of a statement of the case. The [557] trial court made a certificate in which it is recited that certain erumerated papers constitute the judgment roll, and among such papers the statement of the tase is named. But such certificate in no way takes the place of a statement of the case. The errors complained of in this case do not appear upon the face of the judgment roll, and cannot be reviewed, in the absence of a settled statement of the case. Schomberg v. Long, 15 N. D. 506, 109 N. W. 332. Whether it was error to direct a verdict in favor of the defendant involves a consideration of all the material evidence taken at the trial, but such evidence cannot be examined until it becomes identified by a settled statement of the case and becomes a part of the judgment roll. Sanford v. Duluth & Dak. El. Co. 2 N. D. 6, 48 N. W. 434. There is nothing before us, therefore, to authorize a review of the errors complained of. The pleadings and the verdict sustain the judgment. (109 N. W. 216.) It follows that the judgment must be affirmed. All concur.