Page:North Dakota Reports (vol. 48).pdf/734

 WILLIAM V. RYAN, Respondent, v. GILBERT BREMSETH, Appellant.

Appeal and error in the absence of settled case, findings must be accepted; and the evidence is presumed to support material facts alleged.

1. In the absence of a settled case containing the evidence, the facts found by the trial court must be accepted as true; the presumption obtains that the evidence supports the material facts alleged in the complaint and that the findings are supported by the evidence and, further, that additional matters covered by the findings and not embraced in the issues formed by the pleadings were properly determined by action of the parties at the trial.

Appeal and error in the absence of a settled case, the Supreme Court may determine whether the conclusions are warranted by the findings and review the judgment roll.

2. In the absence of a settled case, the Supreme Court may determine whether the conclusions of law are warranted by the findings of fact and may review error appearing affirmatively in the judgment roll.

Pleadings - complaint first challenged on appeal will be liberally construed, and, if its defects were amendable, it will be sustained.

3. A complaint, challenged for the first time upon appeal as to its sufficiency, will be liberally construed and, if any defects therein could have been remedied by amendment in the trial court, will be sustained.

Pleading - in absence of settled case and upon objection first in the Supreme Court, a complaint to cancel a contract held not objectionable after foreclosure as alleging cause for rescission alone.

4. In the absence of a settled case, and upon the presentation of an objection for the first time in the Supreme Court, a complaint, seeking in equity to rescind and cancel a contract for a deed, followed by a trial, and findings and judgment providing for a strict foreclosure, is not subject to the objection that it alleges a cause of action for rescission alone.

Appeal and error - in the absence of a settled case, findings, conclusions and judgment of strict foreclosure of contract for deed with liquidated damages held not error.

5. In the absence of a settled case, findings of fact, conclusions of law and a judgment providing for the strict foreclosure of a contract for a deed and determining that the vendor shall retain payments made upon the contract as liquidated damages in compensation for use and occupancy, or for rental value of the land, pursuant to an express stipulation in the contract, and that the vendor shall receive one-half of the grain crop, produced during the year of litigation, are not erroneous.