Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-11-25
In theSuprerne Court

Sucker State Drill Co., corporation
Appellant, VS.. r. J. Brock and R
L. Richardson, as individuals ant
( as a co-partnership, doing business
under the firm name of Brock
Richardson, Respondents.
1. Appellant, having failed to as
sign errors in it's brief as provided
by Rule II of the rules of this court
and the record showing no reason
for relaxing the rule, the judgment
appealed from is affirmed.
(Syllabus by the court.)
Appeal from the district court
McHenry county, Hon. E. B. Goss
Judge.
Action by Sucker State Drill Co..
corporation, against R. J. Brock
and R. l.. Richardson, as individuals
and as a co-partnership doing bust
ness under the firm name of Brock
& Richardson.
There was a judgment in favor of
defendants and plaintiff appeals.
J Affirmed.
D. J. O'Connell and c. w. Hook
way, for appellant.
w. E. Slavens and Christensen &
Weber, for respondents.
Opinion Of the court by Carmody,
J. Fisk, J. concurs. Spalding and
Ellsworth, J. J. concurs especially.
Morgan, C. j., not participating.
The opinion of the court, written
by Judge Carmody and concurred in
| by Judge Fisk, says:
"This is an action by plaintiff,
| n n.
ants on two promissory notes for the
sums of $3.50 and $3.50, respectively,
both dated October 9th, 1902. De-
PENDANTS set up in their answer, as
defense to the payment of said
notes, a failure of consideration. On
these issues the case was tried to a
jury. At the close of the defendants
case, the plaintiff moved the court
to direct verdict in its favor for the
amount claimed in the complaint,
which motion was denied and plain
tiff introduced evidence ON rebuttal.
After both parties rested, plaintiff
again moved the court to direct a
verdict in it's favor, which motion
was denied, to which ruling no ex-
ception was taken. Kephart VS.. Con-
tinental Casualty co. II N D. $50.
The case submitted to the jury and
verdict returned in favor of the de-
PENDANTS; and judgment entered on
said verdict. After the entry of said
Judgment, plaintiffs, on a statement
of the case, made motion for judg-
ment, Notwithstanding the verdict
or for a new trial, which motion
was denied and judgment entered on
the verdict. Plaintiff appealed from
the order of the court denying it's
motion for Judgment moth Withstand
ing the verdict or for new trial
and from the judgment entered in
favor of the defendants and respon-
dents herein. Afterwards, on mo-
ton of the respondents, the attempt
ed appeal from the order denying al
new trial was dismissed.
AS the case now stands this is AMI
appeal from the judgment only. We
are met at the outset by a motion
Of respondents that the judgment ap-
pealed from be affirmed for the reas-
on that there are no errors assign
ed in appellants brief and that no
exceptions were taken to any of the
alleged rulings. This motion must
be granted. Appellant has not COM
piled with Rule IA of this COURT
There are no assignments Of error
in the brief. In a. proper case we
might relax the rule but we cannot
do so in this case as it is apparent,
by bare inspection of the abstract
and amended abstract, that there are
no prejudicial errors subject to re-
view on this appeal, no proper ex-
ceptions having been saved. (Quo-
ting long list of authorities).
Spalding, j., in concurring special
ly, said: 1.-The af1rmance of the
Judgment in this case results in a
gross miscarriage of justice, but on
a careful examination of authorities,
bearing on the question raised, l am
unable to discover any method by
which a reversal can be had on the
record before US, without violating.
we'll settled rules of practice in this
Jurisdiction. For this reason alone
7 concur in the conclusion that it
must be affirmed
Ellsworth, j., in concurring spec
tally, said: "The principle that a
ruling of trial court denying a mo.
ton to direct a verdict, to which no
exception is taken by the party max
ing the motion, will not be reviewed
on appeal to this court even in a
case where a motion for new trial
on the ground of the insufficiency
of the evidence was made and con-
sidered by the court after that time,
is announced in the case Of DeLen-
drecfe VS.. Peck, / N. D. 422. This
holding has not been expressly over
ruled in any subsequent case al
though a modification announcing a
rule that I believe Is on principle
sounder and more closely within the
evident intent of the law regulating
appeals is found in Dahl VS.. Stake,
IL N. D. 1876. The modification made
does not, however, extend quite to,
although it closely approximates, the
facts of this case and place my con-
currence in the above opinion solely
upon the ground that a contrary
view ia not expressly sustained by