Opinion
No. 32,842.
June 13, 1941.
Appeal and error — reversal — burden of showing prejudicial error.
1. To secure a reversal in this court, the burden rests upon the appealing party to show prejudicial error.
Same — review of questions of fact — necessity that record contain all evidence on questions.
2. This court will not review the decision of the trial court upon mere questions of fact unless the record contains all the evidence introduced on the trial pertaining to such questions.
Same — same — same.
3. In any such case, the record on appeal should affirmatively and unequivocally show, either in the body of the case or the certificate of the judge, that the case contains all the evidence introduced on the issue of fact raised in the appellate court.
Same — review — sufficiency of findings to sustain conclusion of law.
4. In instant case, where findings sustain the conclusion of law, this court will not disturb the result reached below.
Minority stockholders' suit in the district court for Hennepin county by Marie Gubbins and Henry Peter Dick, as administrators of the estates of Peter and Marie Dick, against Milton Irwin, Lina Goldstein, and Irwin-Dick Company. After findings for defendants, Edmund A. Montgomery, Judge, pursuant to which judgment was entered, defendants moved to discharge a notice of lis pendens and also certain garnishment proceedings instituted by plaintiff. The motion was granted, Vince A. Day, Judge, and plaintiffs appealed from the order and the judgment. Affirmed.
Louis Leibo and Mart M. Monaghan, for appellants.
Guesmer, Carson MacGregor, for respondents.
In this, a so-called minority stockholders' suit, the findings were for defendants. Plaintiffs' alternative motion for amended findings or new trial was denied. Judgment was then entered. After entry, the court granted defendants' motion to discharge the notice of lis pendens theretofore filed and also certain garnishment proceedings instituted by plaintiffs. Plaintiffs appealed from both judgment and order.
The basis upon which plaintiffs' claim rests for reversal here is that the evidence for them is of such compelling weight and consequence as to overthrow the findings of the court below and that in their stead we should substitute those proposed by them. Unfortunately, plaintiffs have procured neither a settled case nor bill of exceptions. Instead, we are furnished only with short excerpts from the court reporter's minutes. These the trial court certified as containing "a true statement of that part of the evidence * * * shown in the transcript," but that it "does not contain all the material evidence received on said trial." A reading of the entire printed record leaves no doubt that it wholly fails to meet the requirements of either a settled case or bill of exceptions.
1. It is, of course, elementary that to secure a reversal here the burden is upon appellant to show prejudicial error.
2. Nor will this court review the decision of the trial court upon mere questions of fact unless the record contains all the evidence introduced on the trial pertaining to such questions. 1 Dunnell, Minn. Dig. (2 ed. Supps.) 343, and cases under note 76; Id. § 344.
3. Equally well established is the rule that in such a case the record on appeal should affirmatively and unequivocally show, either in the body of the case or the certificates of the judge, that the case contains all the evidence introduced on the issue of fact raised in the appellate court. Id. § 352, and cases under note 58.
4. In view of the situation presented and inasmuch as the findings well sustain the conclusions of law, we are not in position to interfere. Nor is it likely that Judge Montgomery went wrong in determining the facts. Perhaps that is why plaintiffs have refrained from procuring a settled case containing all the evidence bearing upon the issues presented to him.
In respect to the appeal from the order, it is sufficient to say that this is of no importance now since both are ancillary to the main cause.
Judgment and order affirmed.