On Petition for Rehearing.
Fisk, J.Counsel for appellants has filed a petition for a rehearing in the above cause. It presents nothing new, and it fails to convince us that our former views are incorrect. Ordinarily, under these circumstances, we deem it an unnecessary waste of time in disposing of like petitions, to add anything to the opinion as first announced. However, owing to certain statements in the petition, we deem a brief reply to the first two contentions advisable.
Counsel first challenges the correctness of the decision dismissing the appeal from the order denying his motion for a new trial. Among other things, he says: “There was no evidence in the record before this court that the order overruling plaintiffs motion for a new trial had been filed in the district court sixty days previous to the appeal, . . . and we rise to inquire how this court could conclude that the sixty days in which the right of an appeal from an order is granted had expired when the appeal was made in this case. The dismissal of the appeal from the order overruling the motion for a new trial was evidently inadvertently made, and it was not based upon any of the records in the case and was unwarranted.” Such a bald statement cannot be permitted to go unchallenged in the light of the record before us. Counsel is entirely mistaken as to what the record discloses. The original order denying his motion is before us, and unmistakably shows that it was filed with the clerk of the district court on April 11th, *130and tbe appeal not having been baten until June 15th, it was clearly too late.
Counsel’s second contention in substance and effect is that, although the sufficiency of the evidence to support the judgment was in no manner challenged at the trial, that, nevertheless, on an appeal from the judgment, he may urge such insufficiency as an error of law occurring at the trial. An answer to such contention ought not to be necessary, as the practice is so firmly settled to the contrary. It is, of course, time, as held by this court in Satterlee v. Modern Brotherhood, 15 N. D. 92, 106 N. W. 561, that where the sufficiency of the evidence is challenged at the trial by a motion for a directed verdict, such ruling may be reviewed as an error of law in an appeal from the judgment. In that case both parties moved for a directed verdict at the close of the testimony, and prior to the entry of judgment a motion was made for judgment notwithstanding the verdict, and these rulings were very properly held reviewable on an appeal from the judgment, and that a motion for a new trial was not a condition precedent to the right to such review. A very different case is presented, however, in the case at bar. The sufficiency of the evidence was in no manner challenged at the trial. Counsel concedes in his petition that the decision of matters presented for the first time on a motion for a new trial made after judgment is 'final in the absence of an appeal from the order denying such motion. In other words, that, as to such matters, the order denying the new trial is res judicata. Yet this is all we held on such point in the foregoing opinion, and it is also the holding in the case of Hedderick v. Hedderick, 18 N. D. 488, 123 N. W. 276. Counsel seems to be laboring under the idea that because he has assigned, or attempted to assign, error predicated upon the alleged insufficiency of the evidence when the sufficiency was in no way challenged or ruled upon at the trial, there is a constitutional duty resting upon us to decide the question thus sought to be raised. It is, of course, entirely clear that such an alleged assignment is no assignment at all, for it in no manner challenges the correctness of any ruling in the court below. The question of the sufficiency of the evidence is therefore not before us on this appeal from the judgment, as manifestly such appeal does not bring before us the question of the correctness of an order denying a motion for a new trial made long after the entry of such judgment. *131It is, of course, entirely different, as held in Satterlee v. Modern Brotherhood, supra, regarding rulings made at the trial and duly challenged. These are brought before us on an appeal from the judgment, although the same alleged errors were subsequently urged and passed upon as grounds for a new trial. This, we believe, fully answers counsel’s contention, and we would stop here were it not for the persistent and unwarranted accusations of counsel that this court has violated or evaded § 101 of the Constitution by not passing upon the sufficiency of the evidence. Several pages of the petition are devoted to a discussion of this constitutional mandate, and to the duty of this court to observe it. All through such discussion counsel begs the question by assuming what, as we have seen, is not true, that the question of the sufficiency of the evidence fairly arises on the record. It is not an infrequent occurrence for other members of the bar to make like criticisms in their petitions for rehearings without the least justification therefor, clearly evincing a mistaken idea as to the proper and well-settled construction of this provision of our Constitution. In view of this, and for the information of such members of the bar, we embrace this occasion to express our understanding of said section. In order for a question to fairly arise on the record (in cases not triable de novo), it must, of course, not only in fact exist in the record, but it must be properly assigned as error. But this is not all, for it is not by any means true that every question thus assigned fairly arises on the record. If its decision is not necessary to a final and complete determination of the rights of the litigants, it cannot be properly said to fairly arise on the record, within the meaning of such constitutional mandate. It is absurd to impute to the framers of the Constitution an intent to require of the courts a decision of every point raised, regardless of whether a decision of other and controlling points in legal effect puts an end to the litigation. It would not only force upon the court, needless labor, but it would be an unwise and dangerous practice, as it would inevitably result in laying down hastily prepared precedents on points naturally not as carefully considered as those which are necessarily controlling and decisive of the appeal. In view of this, it. is well settled that, when necessary and controlling points are decided, the other questions cease to fairly arise on the record.
A' like constitutional provision was construed many years ago by *132the supreme court oí Indiana, and sucb construction has been adhered to ever since. See Willets v. Ridgway, 9 Ind. 367. We quote therefrom as follows: “It is true that the Constitution, by an unwise provision, requires that this court shall give a written opinion upon every point arising in the record of every case, — a provision which, if literally followed, tends to fill our Reports with repetitions of decisions upon settled, as well as frivolous, points, and often to introduce into them, in the great press of business, premature, and not well considered opinions, upon points only slightly argued; yet it is a provision not to be disregarded, though merely directory, like that requiring the legislature to use good English. But though the provision is' not to be disregarded, it is to be observed according to some construction, and should receive such a one as to obviate its inconvenience and objectionable character, as far as consistently can be done.
“It often happens that a point is raised involving an important principle, but of minor consequence in its bearing upon the particular case, while it presents the material question in some other pending cause. Now, to decide it in the case where, from its subordinate position, it is but carelessly argued, by one side or the other, if at all, and hence, perhaps, but hastily considered by the court, is unjust to counsel whose subsequently pending cause is thus prejudged, without their being heard, and upon an argument, on which they would be unwilling to rest it. It is this class of decisions which forms the bane of judicial reports.
“These, and other considerations, have led the court to inquire, When does a question, in the sense of the Constitution, arise in the record ?
“We do not think it does so merely because it is raised by counsel, nor because it is presented in the assignment of errors. Nor, necessarily, because it is raised in a bill of exceptions. It must be a question, the decision of which is necessary to the final determination of the cause; and which the record presents with’ a fullness and distinctness rendering it possible for the court to comprehend it in- all its bearings.
“Hence, it has been the frequent practice, of the court in cases where a single point would put an end to a case, to decide that point, and no other.
“So, where a cause was necessarily reversed for one or more errors, *133and remanded for a new trial, which might be upon new issues formed by amended pleadings, and with more or less evidence, points which were made upon the first trial, but might not arise upon the record, or were not so distinctly and satisfactorily presented by the record as they might be after another trial, have been considered- as not necessarily and properly arising in the record, and have been passed. See Ferguson v. Harrison, 7 Ind. 610; Newell v. Gatling, 7 Ind. 147; Rogers v. Stevens, 8 Ind. 464; Clark v. Trovinger, 8 Ind. 335; Postlethwaite v. Payne, 8 Ind. 104; Mason v. Smith, 8 Ind. 73; Maxwell v. Collins, 8 Ind. 40; Henry v. State Bank, 3 Ind. 221.”
For later Indiana authorities on this point, see Trayser v. Indiana Asbury University, 39 Ind. 556, and Lake Shore & M. S. R. Co. v. Cincinnati, W. & M. R. Co. 116 Ind. 578, 19 N. E. 440. From p. 590 of the latter opinion we quote the following: “The gravity and importance of the question is such that we have concluded that it should only be decided in a case where it is indispensably necessary to a proper and adequate judgment. We do not, as we have indicated, believe this is such a case, for we think that our decision upon a point which precedes the one mentioned fully and properly disposes of this appeal. We believe our duty is done when we fully meet and decide a question which leads to a reversal without investigating and deciding questions which lie beyond. Where a material question first in point of priority is decided, all the questions that the record legitimately brings to us are disposed of within the meaning of § 5 of article 7 of our Constitution. That provision cannot mean that in cases of reversal every' point must be decided, even though some one of them completely disposes of the case; nor does it mean that the court must write upon all questions, but that it must write on such only as are decided. This court has uniformly acted upon the rule that where there is a judgment of reversal, it will not consider all of the qestions urged or presented, except in cases where it is clear that they will arise on a new trial, and even then the questions are not decided because it is the duty of the court to decide them, but because it is best to do so as a matter of expediency. We doubt whether a single volume of our Reports can be found, from the time our Constitution went into effect until the present, which does not contain cases in which this rule was acted upon by the court. Questions which come after a pivotal one that controls *134the case, and the decision of which completely disposes of the appeal, cannot, as a general rule, be accurately said to be presented by the record in cases of reversal, although there may be, and perhaps are, exceptional cases. If it. were otherwise, the court might often and often be' required to go far beyond the decision of a question which disposes, adequately and properly, of a pending appeal, and we think it evident that only such questions as must be decided, in order to justly and completely dispose of the case before the court, can be said to be ‘questions arising in the record,’ and questions upon which the court must write. If, to sum up in a short way, the court decides all the questions essential to a full and effectual disposition of the case at its bar, and writes on those questions, it has done its full duty under the Constitution.’’ See also 15 Enc. PI. & Pr. pages 306 and 307 and cases cited.
Ever since this court was organized it has recognized and adhered to a construction of § 101 in accordance with the above holdings.
The petition for a rehearing is denied.