Page:North Dakota Reports (vol. 2).pdf/36

 only errors assigned in this court which are insisted upon are the following: First, the court erred in refusing the motion of the defendant the Duluth & Dakota Elevator Company to direct a verdict in favor of said defendant; second, the court erred in refusing to submit to the jury the question of the conversion of the property in question, and in refusing to instruct the jury as to the law upon that subject.

In this court respondent's counsel raise the preliminary question that the court cannot consider either of the errors assigned, for the reason that no motion for a new trial was made in the court below. Counsel say: "The question whether there is sufficient evidence to go to the jury involves a review of that evidence. If the appellant desires a review of the facts, a motion for a new trial in the district court was necessary. This contention is untenable. The errors assigned are clearly such as the statutes classify as "errors of law occurring at the trial," and no question of fact is sought to be reviewed. It is true that such errors may be urged as grounds for a new trial, but that remedy is not exclusive, but, on the contrary, it is well settled that the remedy by motion for a new trial for such errors is concurrent with that of appeal from the judgment. Of course the errors must appear upon the judgment roll, and such errors cannot be made to appear without incorporating a bill with the judgment roll, which was done in this case. Our statutes regulating exceptions and new trials are in the main copied from those of the state of California, and the decisions from that state are decisive upon the point in discussion. Craven v. Dewey, 13 Cal. 42; Walls v. Preston, 25 Cal. 61, 67; Donahue v. Gallavan, 43 Cal. 576; Caldwell v. Parks, 47 Cal. 642; Levy v. Getleson, 27 Cal. 685; Hayne, New Trials and App. p, 311, § 112. In California the practice of directing nonsuits prevails; but such practice, so far as the question we are considering is concerned, is substantially the same as directing a verdict. In both cases the court passes upon the legal sufficiency of the evidence to warrant a judgment. Marshall v. Manufacturing Co., (S. D.) 47 N. W. Rep. 290; Hayne, New Trial & App. p. 284, § 100. Errors of law were reviewed in the late territorial court without a motion for a new trial.