Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1904-11-05
ORDER OF LOWER
COURT Affirmed.

Case.
The supreme court has affirmed the
district court, Judge Palda, in the case
of Nehemiah Davis, respondent, VS..
D. A. Dinnie and Martin Jacobson, ap-
pellants.
Syllabus as follows:
Upon an appeal from an order
granting new trial, when the motion
is made upon several grounds, the
question is not whether the trial
judge was warranted in granting it
upon a particular ground referred to
by him in the order, but whether upon
the whole record and upon any of the
grounds urged it should have been
granted.
An order granting an new trial will
not be reversed merely because the
trial Judge assigned wrong reason
for it. 1t is the correctness of the
order and not the reason assigned that
is involved upon the appeal
Where a motion for a new trial is
made in part upon the courts minutes,
the order granting or denying the mo-
ton can not be reviewed in the alb
sence of a statement of case embody-
ing such portions of the evidence or
proceedings as are necessary to a
review of the specifications based
thereon"
Appeal from an order Of the district
court of Ward county; L. J. Palda, Jr.,
judge.
E. L. Sutton, George A. Bangs and
James Johnson, for appellants.
Greenleaf & Leighton and Gammons
& Barrett, for respondent.
Young, c. j., says: The plaintiff
brought this action to recover damages
for personal injuries alleged to have
been caused by defendants negligence.
The jury returned verdict for de-
PENDANT The plaintiff made motion
for a new trial, which motion was
granted. Defendant appeals from the
order.
The appellant has not presented a
record upon which the order can be
reviewed and for this reason it must
be affirmed without an examination Of
the merits.
The motion was made upon certain
affidavits relating to the alleged mis-
conduct Of the defendant and certain
jurors and upon ''the pleadings, papers,
records and minutes of the court. "
The notice of intentiou set forth the
following grounds for new trial:
O irregularities in the proceedings
of the court, jury and defendants, and
especially the defendant D. A. Dinnie,
by which this plaintiff was prevented
from having fair trial." GU "Mis-
conduct Of the jury" (3) Insult
cheney of the evidence to justify the
verdict, and that it is against law
(4) Error in law occurring at the
trial and excepted to by plaintiff; ;" and
stated that "Said motion as to the first
and second grounds therein will be
based upon the affidavits to be here
after served, and as to the third and
fourth grounds hereof, will be based
upon the minutes of the court" The
notice Of intention specified in detail
the particulars in which the plaintiff
claimed the evidence was insufficient
to Justify the verdict, and also specified
number of alleged errors in the ad
mission of testimony. The plaintiff
submitted affidavits in support of the
first two grounds of the motion ant
the defendant served number o.
counter affidavits. The trial Judge, il
his order granting a new trial, statet
that he was Satisfied that there wa,
misconduct on the part of the defend
ant, D. A. Dinnie;;" and. "that thu
jurors sitting in the trial of said caus'
were guilty Of misconduct, -
No statement of the case has beel
settled by the appellant and he ha
thus failed to present to this court
record upon which we may determin
whether the attack upon the suff
cheney of the evidence to justify tn
verdict, and the several attacks upol
the rulings upon the admission Of test
mony were or were not well grounded
The appellants abstract contain
merely the affidavits relating to tn
alleged misconduct His counsel hav
E apparently assumed that if this pa,
ticular ground for a new trial was no
well taken the order must be re
,versed. This is entirely erroneous
b Upon an appeal from an order grantin
! new trial, when the motion Is mad
upon several grounds, the question !
not whether the trial Judge was wa
B ranted in granting it upon a singl
ground or upon particular groun
referred to by him in his order, but
rather from the whole record and upo
~ any Of the grounds urged 1t shoul
have been granted. The presumptio