Henry, Appellant, v. Dean, Respondent

Henry, Appellant, v. Dean, Respondent. Appeal — Review — Insufficiency of Evidence — Practice. Under § 279, G. C. Pro., requiring a party who objects to a decision on the ground of the insufficiency of the evidence to sustain it, to specify the particulars wherein it is insufficient, and there was nothing in the record pointing out wherein it was claimed the evidence was insufficient, the court cannot examine the evidence. (Argued and determined at the May Term, 1888.)' APPEAL from the district court, Roberts county; Hon. L. K. Church, Judge. This was an action to redeem certain premises from a foreclosure sale. The only issue was whether or not the plaintiff had tendered to the defendant the redemption money. This issue was tried by the court without a jury; the court found the tender had not been made, filed findings in accordance therewith, and ordered judgment for the defendant. The plaintiff moved for a new trial on the ground of the “insufficiency of the evidence to justify the decision.” The motion was made upon a statement, but it nowhere pointed out, nor did the record show, wherein it was claimed the evidence was insufficient. The motion was denied November, 1886, judgment was afterward entered November, 1887, and the plaintiff appealed, assigning error on the refusal to grant the new trial. At that time section 279, C. C. Pro., provided: “ No particular form of exception is required. The objection must be stated, with so much of the evidence or other matter, as is necessary to explain it, and no more. But when the exception is to the verdict or decision, upon the grounds of the insufficiency of the evidence to sustain it, the objection must specify the particulars in which such evidence is alleged to be insufficient.” J. B. Atwater and Babcoeh & Bacon, for appellant. M. O. Little (Hooleer, Little & Munn, counsel), for respondent. The particular error relied upon for the new trial should have been pointed out. Bush v. Northern P. R. R. Co. (Dak.), 22 N. W. Rep. 508, 510. [MAJORITY — By the Court :] By the Court : The judgment of the court below is affirmed. The court holds there is no sufficient exception apparent of record as would permit this court to examine the evidence to determine whether it is sufficient to justify the findings of the court. All concur.