This is an appeal by the plaintiffs from a judgment in favor of the defendants for a dismissal of the action. The action was brought to recover certain moneys belonging to the state of North Dakota which it is alleged that the defendant Van Horne received as Motor Vehicle Registrar of the state of North Dakota, and which he thereafter retained as his own. Plaintiffs' demand is set forth in two causes of action. The first cause alleges that the defendant Van Horne, as Motor Vehicle Registrar received and was paid a salary in excess of that which he was entitled to receive, and the second cause of action is predicated upon the proposition that said defendant Van Horne, while serving as Motor Vehicle Registrar received and retained payments made by a private concern for the furnishing to such concern of lists of car registrations and other information of commercial value to such private concern.
The defendant Van Horne interposed an answer that put in issue the material allegations of the complaint, and further alleged that all payments made to the said Van Horne as and for salary were paid upon vouchers duly and regularly presented to and filed with the State Auditing Board and passed upon and approved by such Board in accordance with and reliance upon a written opinion of the attorney general duly made to such Board.
The case was tried to a jury and resulted in a verdict for the *Page 457 defendant Van Horne for a dismissal of the action. From the judgment entered pursuant to the verdict, plaintiffs have appealed.
The only errors assigned on this appeal relate to the instructions to the jury. It is contended that the court erred in giving certain instructions and also that it erred in not giving others.
It is a well-settled rule of general application that "`an appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment, order, or decree from which the appeal is taken. In other words it will be presumed on appeal, in the absence of a contrary showing, that the trial court acted correctely and did not err. Indeed error is never presumed on appeal, but must be affirmatively shown by the record; and the burden of so showing it is on the party alleging it, or as sometimes stated, the burden of showing error affirmatively is upon the appellant or plaintiff in error.' 4 C.J. 731-733. See also Erickson v. Wiper, 33 N.D. 193, 222, 157 NW 592. And on an `incomplete record, the appellate court will presume any conceivable state of facts within the scope of the pleadings and not inconsistent with the record which will sustain and support the ruling or decision complained of; but it will not, for the purpose of finding reversible error, presume the existence of facts as to which the record is silent.' 4 C.J. 736." Brissman v. Thistlethwaite, 49 N.D. 417, 421, 422, 192 N.W. 85. This rule applies with full force to the court's instructions to the jury.
"The burden is on appellant to show that the trial court erred in charging the jury; and in the absence of a contrary showing, the appellate court will, for the purpose of sustaining the judgment but not of reversing it, indulge in all reasonable presumptions and intendments in favor of the sufficiency and propriety of the instructions given to the jury by the lower court." 5 CJS p. 362.
The record on this appeal furnishes no basis for an assignment of error upon the alleged failure of the court to give further instructions. It is admitted that the plaintiffs made no request for any instructions other than those which were given. It is the settled rule in this state that in the absence of a request for instructions mere nondirection does not constitute reversible error unless the nondirection is of such nature *Page 458 that the failure to instruct amounts to a misdirection. Huber v. Zeiszler, 37 N.D. 556, 164 N.W. 131.
The assignments of error based upon the instructions given consist of certain quoted portions of the instructions, said to be erroneous, without pointing out wherein they are claimed to be erroneous, or resulted in prejudice to the plaintiffs, under the evidence in the case. There was no claim in the court below that the verdict is contrary to the evidence; and there is not and could not be any such claim in this court. Jacobson v. Klamann,54 N.D. 867, 211 N.W. 595. The instructions are within the issues framed by the pleadings, and their effect upon the verdict that was reached cannot be determined without a consideration of the evidence that was introduced.
The appellants have failed to sustain their assignments of error by the record presented on this appeal.
Judgment affirmed.
BURR, Ch. J., and CHRISTIANSON, NUESSLE, MORRIS and BURKE, JJ., concur.