Nichols & Shepard Co. v. Stangler

ON PETITION FOR REHEARING.

The petition for a rehearing in this case is denied upon the ground that the points urged in the petition are, in substance, the same as those adjudicated in the decision, and hence were fully considered by the court before its opinion was handed down. The rule permitting petitions for rehearings is intended to afford an opportunity of directing the attention of this court to some fact, rule, or legal principle overlooked by the court in deciding the-case, and was not intended to give counsel an opportunity to present an ex parte reargument upon the questions considered and disposed of in deciding the case. Among the statements made in the petition are the following: “ In equity cases, however, the appellate court sits, not as a court merely for the correction of errors of law, but it must retry the case on the facts. In such cases findings of fact are not required, and are not customary. They are absolutely of no use. They are not binding on the appellate court if made, and in fact are entirely disregarded. The appellate court tries the case de novo, and disposes of it finally, if all the evidence is before it. Such was the practice in all the states before the adoption of the code, and is still the practice in the United States courts, and in those states which have not adopted the code practice.” In our judgment, it is more than probable that an examination of the early chancery practice on appeals would be of little aid to the bar of this state in seeking to understand, the anomolous practice inaugurated by the recent statutes' which have attempted to regulate trials and appeals in cases at law and in equity tried in the District Courts of this state without a jury. *107We shall not attempt any comparisons of systems so widely asunder, but will simply direct attention to some of the more obvious differences between the two systems.

First. The chancery system proper embraced only suits where equitable relief was sought, while the system of procedure introduced in this state by the act of 1893 (see chapter 82, Laws 1893) applies to cases at law as well as those in equity. Again, in the chancery practice there was no system of express findings of fact and law which is. denominated a “ decision ” in the code states. This salutary and well digested system of express findings, and which discarded all implied findings, was. not. disturbed by the statute of 1893, except in one particular. That statute declared (section 1) that “ no exception need be taken on findings of fact made.” The language in terms clearly perpetuates the system of express findings. Besides, the act did not, in terms, repeal the statute which requires findings to be filed preliminary to the entry of judgment. In chancery no application for a new trial was ever made to the court of original jurisdiction. This was not the case under the reformed procedure which obtained in all the code states, and prevailed here prior to 1893; nor did that enactment in terms either repeal or refer to any of the pre-existing statutes regulating applications for new trials. Indeed, it is a problem only too familiar (and one much discussed at the bar and in the courts of this state since the act of 1893 was passed), whether that act was ever intended to repeal any feature of the laws of the state which govern motions for new trials. In the very case we áre discussing the distinguished counsel for the respondent insisted in his argument before this court that the act of 1893 did not, as originally passed, or as amended in 1895, repeal any part of the law regulating new trials, but, on the contrary, counsel contended that such laws were available in court cases, and could be resorted to by suitors according to the exigencies of their cases. Other advisers of this court have strenuously contended that the right to move for a new trial in court cases was materially curtailed, but was not wholly destroyed, by the act of

*1081893. If either of these constructions of the statute are correct, then the innovations upon the practice which have resulted from the act in question, whatever they may be, do not operate to reintroduce that ancient and venerable system vaguely known as the “ chancery practice.” In fact, the old system of conducting suits for equitable relief has been deliberately discredited in all the code states, and, with the full approval of the most eminent members of the profession, has been superseded by the code system, which system, after many years of trial, has fully vindicated the wisdom of its founders. However this may be, there can be no room for doubt, under the amended statutes embraced in section 5630, Rev. Codes, that on appeal in a court case the evidence adduced at the trial can only be reviewed in that particular mode pointed out by that section, and in other portions of the code expressly referred to in that section. Nor can this court permit counsel, at their election, by merely waiving findings of fact, to inaugurate another and wholly unwarranted and unfamiliar method of investigating questions of fact arising upon the evidence. The statutory method is clear and unambiguous, and we are not permitted, upon suggestion of counsel, to disregard that method, and resort to some other. Nor do we agree with counsel in his assumption that in cases retried in this court findings of fact “ are of no use.” In this class of cases, as much as under the system displaced by the act of 1893, it will, in our judgment, aid both court and counsel to have the real points at issue sifted out in advance, and enucleated in the manner carefully pointed out in the code. If counsel are early advised upon the the specific points to be discussed in the court of last resort, they are likely to be in a better position to intelligently advise this court with respect to its duties. Besides, there is often great advantage resulting from knowing just what view was taken of the facts and the evidence in the trial court. In equity cases, when tried de novo in an appellate court, the view taken below of questions of fact arising upon the evidence was not ignored in the court of review. Where evidence was evenly balanced, or nearly *109so, a doubtful scale would always turn in favor of that view of the evidence which was adopted below; and this rule rested upon the well known fact that the trial court has facilities for weighing the testimony which a reviewing court cannot have. This rule was examined and applied by this court in Jasper v. Hazen, 4 N. D. 1, 58 N. W. Rep. 454.

(72 N. W. Rep. 1089.)