The plaintiff presented an earnest petition for rehearing, the gist of which is "that the Appellate Court disposed of the case, and entered its Judgment, upon entirely different theories than those which were presented to the Trial Court and upon which the case was tried in the Court below; the Appellate Court did not consider nor decide a single proposition decided by the Court below, nor set out one reason why the holding of the Court below should be reversed. That it does not reverse the holding of the Trial Court but sets up an entirely different reason for holding as it does."
He elaborated to show what he considers were the issues presented to the trial court, stating that the parties and the trial court agreed the question of the validity of the quitclaim deeds given by the children to the father was involved and that this included the question of the consideration for the deeds and whether they were obtained voluntarily. Petitioner also maintained that the issues as formulated required determination of "the effect of the judgment rendered on June 3, 1935 in the foreclosure action conducted by the Citizens State Bank against Calmer O. Nord (plaintiff here) and C.A. Nord (one of the defendants here), upon the rights of Calmer O. Nord in the real estate involved in the action; is the judgment in that action res adjudicata so that Calmer O. Nord is estopped from claiming any interest in the real estate adverse to the Citizens State Bank," and that the trial court so considered these as the issues involved. A rehearing was granted and both sides heard.
On this appeal the appellant demanded a trial de novo in this court, as it had a right to do under the provisions of § 7846 of the Supplement, which provide that on a trial de novo the "Supreme Court shall try anew the question of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and either affirm or modify the judgment or direct a new judgment to be entered in the district court. . . ." *Page 573
Because of such provisions, "It is for this court to construe the pleadings and determine the issues involved in each case that comes before it. This is peculiarly so in a case which comes here for trial de novo." Patterson Land Co. v. Lynn, 44 N.D. 251, 253, 175 N.W. 211, 212.
The terms "tried anew" and "trial de novo," as pointed out in Christianson v. Farmers' Warehouse Asso. 5 N.D. 438, 443, 67 N.W. 300, 301, 32 L.R.A. 730, are not used with extreme accuracy. There is no new evidence adduced in this court. "The case must be decided upon a record already prepared by a judicial tribunal. This court simply reviews the record. . . ."
We have held repeatedly that "On a trial de novo in the Supreme Court the findings of the district court are entitled to and will be given appreciable weight." Donovan v. Johnson, 67 N.D. 450,274 N.W. 124. This is because of the superior opportunities to observe the demeanor of witnesses, pass upon their credibility, and interpret the indefinable aura of the trial. Nevertheless the decision is not binding upon this court. This court is required to try the case anew upon the record and to decide the facts independently of the trial court's determination. Fargo Glass Paint Co. v. Smith, 66 N.D. 389, 266 N.W. 100; State ex rel. Bd. of Railroad Comrs. v. Burt State Bank, 66 N.D. 529, 267 N.W. 337. Such findings of the trial court are not controlling upon a trial de novo. Passenger v. Coan, 61 N.D. 569, 238 N.W. 773.
In deciding the case this court must determine whether all of the issues raised and all of the questions presented need to be determined. The appeal is heard upon the issues framed by the pleadings and the theory of the case adopted at the trial. It is well settled that "Where a case is presented to this court on appeal from the decision of the district court, the appellant cannot be permitted to abandon the theory upon which the case was tried in the lower court and present his appeal on a different theory." Roach v. McKee, 66 N.D. 304, 265 N.W. 264; Re Campbell,56 N.D. 60, 215 N.W. 913; Lindberg v. Burton, 41 N.D. 587, 599, 171 N.W. 616, 620. This court does not vary the pleadings nor the issues presented by the pleadings. Neither does it adopt a theory of the case different from the theory of the trial; *Page 574 but it does determine whether all questions argued need to be discussed.
This court did not overlook the respondent's statement of the controlling issues. We set forth the theory of the plaintiff in the two issues which he claims in this petition — the effect of the judgment in the foreclosure proceedings and whether such judgment worked an estoppel of him; and "the validity of the deeds given by the brothers and sisters as grantors to the father."
The decision considers both of these issues. We hold that it is not necessary to determine whether there was an estoppel. We, in effect, proceed as though he were not estopped by this judgment, thus giving the plaintiff the benefit of that view, and we consider his claims of title as if no such judgment had been rendered. Thus, one point he argued is eliminated.
We also consider the issue he raises with reference to the validity of the deeds, and hold the record shows the plaintiff is not in position to raise that question. The vital issues, that is, the issues which go to the determination of the rights of the parties, are considered and determined.
Upon the trial de novo, considering the pleadings, the proof, and the general theory adopted in the trial of the case, we find the plaintiff was claiming to be the sole owner of the property involved, but that the title he claimed had no foundation. He based his right upon deeds given to him by his brothers and sisters, who had already parted with their title. He admitted that the quitclaim deeds given by his brothers and sisters to the father had been delivered to the father. These deeds were never set aside. Plaintiff, himself, quitclaimed to his father for the purpose of assisting his father to settle with the defendant bank for the debt of the plaintiff. The quitclaim deeds to him were subsequent thereto. The brothers and sisters are not parties to the action and we show he is not in position to litigate the validity of the deeds which stand between him and the deeds upon which he bases his title. The decision heretofore rendered is adhered to.
CHRISTIANSON, Ch. J., and MORRIS, J., concur. *Page 575
NUESSLE, J. I adhere to the views expressed in my concurrence in the result reached in the original opinion herein.
SATHRE, J., I concur in the views expressed by Judge NUESSLE.