Hazen v. Thompson

GATES, J.

This cause was tried by the court without a jury. The findings of fact and conclusions of law were in favor of the plaintiff, and.judgment was entered accordingly. A notice of intention to move for a new trial was given. Defendant specified eight certain errors upon which the motion for a new trial would -be based. These alleged errors were all -predicated upon the insufficiency of the evidence to sustain the findings. The motion for a new trial was denied. From the judgment and order denying a new trial, defendant appealed.

In his brief upon appeal, appellant adopts the specifications of error used upon -the motion for a new trial as his assignment of errors upon appeal. The action -of the trial court, however, in denying a new trial is not assigned as error. Respondent. in his brief filed on October 17, 1913, called thé attention of counsel -for appellant to this -defect. Such counsel did not ask -leave -to amend his -brief but ignored the descisions -of this court hereinafter cited and insisted in his reply brief that his assignment of errors was süfficient.

It has been consistently held by this court, beginning with the early days of statehood, that where there is no assignment that the.trial court erred in denying- the motion for a new trial this court is precluded from considering the sufficiency of 'the evidence to sustain the findings or verdict. Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Barnard & Leas Mfg. Co. v. Galloway, 5 S. D. 205, 58 N. W. 565; Carroll v. Nisbet, 9 S. D. 497, 70 N. W. 634; Wolf v. Sneve, 23 S. D. 260, 121 N. W. 781; Williams Bros. Lumber Co. v. Kelly, 23 S. D. 582, 122 N. W. 646; Whaley v. Vidal, 26 S. D. 300, 128 N. W. 331; rule 5 of this court (140 N. W. viii).

There being nothing else in the record for us to review, the judgment and order appealed from are affirmed.