Page:North Dakota Reports (vol. 1).pdf/448

 trine that every erroneous and prejudicial ruling upon a trial could be reviewed without an exception, as it would involve the merits, and necessarily affect the judgment. A defendant who admitted the making of an oral contract, void under the statute of frauds, and who relied solely upon its invalidity, could review, without exception, an erroneous ruling upon the trial admitting parol evidence of such an agreement, for this would involve the merits, and necessarily affect the judgment. The result of this doctrine would be that we would have a bill of exceptions without the necessity of any exceptions in it, and the phrase, “errors of law occurring at the trial,” would cease to have any distinctive significance. Section 5237 was taken from Wisconsin in 1887. In 1883 it was construed by the supreme court of that state in the same manner in which we interpret it. In Kirch v. Davis, 55 Wis. 287, 11 N. W. Rep. 689, the court said, at page 298, 11 N. W. Rep. 693. “Counsel for the defendant argued that the direction to return a verdict for the plaintiff is an order or determination which may be reviewed on appeal from the judgment, under Rev. St. p. 799, § 3070.” The court then quotes the section, which is precisely the same as § 5237, and then continues: ‘These provisions have no application to rulings’ and determinations of the court which do not become part of the record proper. If they are of such a character that it is necessary to settle a bill of exceptions in order to make them of record, they are not reached by the statute. Unless excepted to, they cannot be properly inserted in the bill. Otherwise we might have a bill of exceptions without exceptions, which is an absurdity. The direction to the jury to return a specific verdict for the plaintiff is no part of the record proper. It can only be presented in a bill of exceptions. Hence the statute does not authorize a review of such direction on appeal, no exception thereto having been taken.”

Counsel for appellant insists that the sufficiency of the evidence to sustain the verdict was raised by his motion for a new trial, and that that question is before us. We cannot assent to this view. There is no question of fact or of the sufficiency of the evidence to sustain the verdict upon this record. The jury did not consider the sufficiency of the evidence, nor did they