Page:North Dakota Reports (vol. 48).pdf/155



Appeal from the District Court of Ransom County, Graham, J.

Reversed and remanded for a new trial.

Kvello & Adams, and Ray W. Craig, for appellants.

Curtis & Remington, C. C. Bengert, and E. T. Burke, for respondents.

, J. This is an appeal by the defendant Underwood from an order of the district court of Ransom county, denying a motion for a new trial. The action is one to recover damages for false imprisonment. Upon the trial the jury found the issues for the plaintiff as against the defendants Underwood and Moran, but in favor of the defendant Harper. Damages were assessed in the sum of $1,200. It is unnecessary to state the facts in this case. They are the same, substantially, as stated in the case of Katherine Mason v. Underwood et al., 183 N. W. 525, decided concurrently herewith.

The only assignment of error argued by the appellant in the brief filed in this case is that the verdict was so excessive as to appear to have been rendered under the influence of passion or prejudice. It appears, however, that among the specifications of error printed in the brief there is one relating to the ruling of the trial court excluding testimony with reference to the ownership of the tent. And in stating the issues involved in the appeal the question is stated: “Should the court have permitted testimony in mitigation of punitory damages?” The assignment regarding the ownership of the tent is fully argued in the brief in the Katherine Mason Case, orally argued, submitted, and decided concurrently herewith. It is also argued in respondent’s brief herein. This court has had some doubt as to whether the appellant should not be considered to have waived all of the assignments except that relating to the excessiveness of the verdict, since this is the only assignment argued in the brief; but in view of the manner in which the cases were submitted in this court, the majority of the court does not regard the specification as to the tent waived. Our views of this error are set forth in the other case and need not be repeated here. In view of the necessity of a retrial of the Katherine Mason Case and of the probable prejudicial effect of excluding from the jury the circumstance of the ownership of the tent for its bearing upon the