Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-02-25
In the Supreme Court

H. c. Delaney, j. J. Delaney and
Alexander Thompson, plaintiffs and
respondents, VS.. Western Stock Co.,
defendant and appellant.
I. This cause was tried in the court
below as an equity case, all of the
issues having been tried and deter
mined by the court without jury
with the implied consent Of all part
les This being true, defendant will
not be permitted to urge in this court
for the first time the issues presented
case for trial by jury insted Of by
the court. Whether the contract set
forth at length in the opinion created
partnership relation between the
parties, and whether the issues pre-
sented by the pleadings were legal or
equitable in character, Is not deter
mined as no such questions were
raised in the court below and appel
liant, under we'll settled rules Of ap-
pellate procedure, will not be permit.
ted to urge in this court theory of
the case contrary to that upon which
the case was tried and decided in the
trial court
g Regardless of the nature OF the
issues the district court possessed the
requisite jurisdiction to try and de-
eide the same without a jury where
the parties implicitly consented there
to.
3. evidence examined, and it is
held that the findings and conclus'
ions Of the trial court are substan-
italy correct and amply supported by
the testimony.
Syllabus by the court.
Appeal from the district court Of
Mcintosh county; Allen, ].
Action by Delaney Bros, and Alex
ander Thompson, against the Western
Stock Company. From judgment in
favor of Delaney Bros, defendant ap-
peals, requesting a review of the en-
tire case in the supreme court.
Judgment affirmed.
A. w. Clyde. for appellant.
Rourke and KvellO, for respond
ents.
Opinion of the court by Fisk. j..
all cOncurring.
o. L. Hide, plaintiff and appellant,
vs.. E. ]. Nelson, defendant and re-
spondent.
l. To authorize a revision by this
court of alleged errors in the taxation
of costs the record must contain suf'
ficient data to enable the court to de-
termine whether such errors have
been committed. Where the evidence
on which the trial court acted in tax
ing costs Is not contained in the rec
ord ON appeal the decision of the
trial court will not he disturbed. un-
less error Is apparent on the face Of
the Judgment.
2. The so-called statement of the
case on this appeal radically fails in
numerous respects to conform to the
statute or to the rules Of this "ourt.
It tails to contain proper spe.ifica-
lions of error, and. furthermore,
evSn If errors were specified. the al
legged errors are not available to ap. |
pe)lant as the record fails to disclose |
timely objections and exceptions 10
the ,%.:ous rulings complained W.
Such statement of case also fails 10
specify that appellant desires a re-
view Of the entire case or of any paw
ticular questions Of fact as the stat
IT.. requires in cases triab'e de- move
in this court
3. There is nothing contained in
the record of this appeal from which
the supreme court is enabled to In
tel)igently determine what costs ap-
M liant is entitled to have taxed. but
the Judgment roll does disclose re-
versatile error in denying any costs
to him, and for such error the judg-
m7nt is reversed.
Syllabus by the court.
Aupeal from the district cour; OF
Williams county. Goss. j.
Action by 0. L. Hide against F. J.
Nelson From judgment and order
in defendants favor, plaintiff APP
peals.
Judgment reversed.
VIM. Maloney. for appellant.
A. L. Knauf and Bessie & Gleer.
for respondent.
Opinion of the court by Fisk, J.,
all concurring.
w. w. Corbett. plaintiff and respond