Parsons v. Rowell

Bronson, J. This is an appeal from an order refusing to modify a judgment. The only papers before this court, in addition to the pleadings, are: Notice of trial, verdict of the jury, order for judgment, the judgment and notice of entry thereof, statement of costs, objection thereto, motion to modify judgment and order denying the same, order granting extension of time in which to appeal, notice of appeal, undertaking, and specifications of error. No statement of the case has been settled. The entire judgment roll is not even presented. From the complaint it appears that the action was instituted to recover for the negligent destruction by fire of certain stacks of millet and oats. The answer denies negligence and alleges plaintiff’s contributory negligence. It also alleges a tender made to and deposit for the plain 443 tiff of $100, and of a tbresbing bill owing amounting to $40 in settlement, and of plaintiff’s refusal to accept tbe same. It then alleges sucb tender as a counterclaim and demands judgment accordingly. In tbe order for judgment tbe court recites that tbe defendants, before trial, tendered tbe sum of $100, and also tbe satisfaction of sucb tbresbing bill of $40, and that tbe court instructed tbe jury to render verdict over and above sucb $140. Tbe jury returned .a verdict of $128.26 for tbe plaintiff. The court ordered judgment for tbe amount, plus tbe tender so made, and judgment was entered accordingly. The appellants later moved to modify tbe judgment to conform to tbe verdict; from tbe order overruling sucb motion tbe defendants have appealed. In an amended certificate, tbe trial judge states that tbe motion to modify tbe judgment was overruled upon tbe entire record in tbe case, including tbe evidence of deposit and offer of payment of tbresbing bill by tbe defendants, tbe instructions of tbe court to tbe jury wherein tbe court instructed tbe jury that their verdict should be for sucb an amount that they found for tbe plaintiff over and above tbe $100 deposit and tbe $40 thresh bill tendered. This court does not know what evidence was introduced, stipulations made, instructions given to tbe jury, what issues were submitted or withdrawn from the jury, or proceedings bad in tbe trial court. It is well settled that he who urges error in tbe order of tbe trial court, must prepare and present a record of tbe facts upon which the trial court acted. State v. Scholfield, 13 N. D. 664, 102 N. W. 878; Schomberg v. Long, 15 N. D. 506, 108 N. W. 332; State v. Gerhart, 13 N. D. 663, 102 N. W. 880; Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314; Erickson v. Wiper, 33 N. D. 193, 225, 157 N. W. 592. Even tbe instructions of tbe court, a part of tbe judgment, roll, are not presented. Comp. Laws 1913, § 7689. It was tbe duty of tbe appellant to present a record which affirmatively showed error of tbe trial court in its order; every presumption must be accorded in favor of tbe judgment rendered. Raad v. Grant, — N. D. —, 169 N. W. 588. There is accordingly nothing before this court to review. The order of tbe trial court is affirmed, with costs to tbe respondent.