Kleinjan v. Knutson

11 Citing cases

  1. Eakman v. Robb

    237 N.W.2d 423 (N.D. 1975)   Cited 34 times
    In Eakman v. Robb, 237 N.W.2d 423, 428 (N.D. 1975), our court, in holding that under North Dakota law the imposition of restrictive covenants by the filing of a plat is a "conveyance", found persuasive the reasoning of the Michigan Supreme Court in Malicke v. Milan, 320 Mich. 65, 30 N.W.2d 440, 442, rev'd on other grounds, 320 Mich. 65, 32 N.W.2d 353 (1948), wherein the court stated that land use restrictions are "an interest in real estate in the nature of an easement".

    ] In Kleinjan v. Knutson, 207 N.W.2d 247 (N.D. 1973), this Court applied Rule 52(a), N.D.R.Civ.P., holding, in paragraphs 1, 2, and 4 of the syllabus: "1. The trial court's findings of fact are not to be set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses.

  2. Layman v. Braunschweigische Maschinenbauanstalt

    343 N.W.2d 334 (N.D. 1983)   Cited 38 times
    In Layman v. Braunschweigische Maschinenbauanstalt, 343 N.W.2d 334 (N.D. 1983), we held that the reduction of a plaintiff-employee's recovery against a third-party tortfeasor by the percentage of negligence attributable to the plaintiff's employer was contrary to the doctrine of joint and several liability of Section 9-10-07, N.D.C.C.

    Our review of the trial court's finding of negligence is limited by Rule 52(a), N.D.R.Civ.P. The trial court's findings are to be given the same weight as a jury verdict and, in reviewing those findings, the evidence must be viewed in a light most favorable to the findings. Hoge v. Burleigh County Water Management District, 311 N.W.2d 23, 28 (N.D. 1981); Kleinjan v. Knutson, 207 N.W.2d 247, 251 (N.D. 1973). The mere fact that we might have reviewed the facts differently if we had been the initial trier of the case does not entitle us to reverse the lower court. Hoge, supra.

  3. Merrill Iron & Steel, Inc. v. Minn-Dak Seeds, Ltd.

    334 N.W.2d 652 (N.D. 1983)   Cited 20 times

    Accordingly, we review the court's finding on this issue in accordance with Rule 52(a) and note that, on appeal, the trial court's findings are given the same weight as a jury verdict. Stee v. "L" Monte Industries, Inc., 247 N.W.2d 641 (N.D. 1976); Kleinjan v. Knutson, 207 N.W.2d 247 (N.D. 1973). We find that evidence presented at trial sustains the finding that TEI did not substantially perform the contract.

  4. Alumni Ass'n of Univ. v. Hart Agency, Inc.

    283 N.W.2d 119 (N.D. 1979)   Cited 25 times

    We are not left in this case with a definite and firm conviction that in the preparation of the findings of fact a mistake has been made. See Hultberg v. Hultberg, 259 N.W.2d 41, 46 (N.D. 1977); Stee v. "L" Monte Industries, Inc., 247 N.W.2d 641, 644 (N.D. 1976); In re Estate of Elmer, 210 N.W.2d 815, 820 (N.D. 1973); and Kleinjan v. Knutson, 207 N.W.2d 247 (N.D. 1973). The words "unless clearly erroneous" in Rule 52(a) mean "presumptively correct."

  5. Bladow v. Bladow

    249 N.W.2d 917 (N.D. 1977)   Cited 12 times

    Findings of fact by the trial court, in a case tried upon the facts without a jury, will not be set aside by this court unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P.; Mattco, Inc. v. Mandan Radio Ass'n, Inc., 246 N.W.2d 222, Syll. ¶ 2 (N.D. 1976); Berry-Iverson Co. of North Dakota v. Johnson, 242 N.W.2d 126, Syll. ¶ 1 (N.D. 1976); Eakman v. Robb, 237 N.W.2d 423, Syll. ¶ 2 (N.D. 1975), and Kleinjan v. Knutson, 207 N.W.2d 247, 249 (N.D. 1973). Furthermore, in Eakman v. Robb, supra 237 N.W.2d at 424, in paragraphs 4 and 5 of the syllabus, we held: "4. A finding is `clearly erroneous' only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.

  6. Stee v. 'L' Monte Industries, Inc.

    247 N.W.2d 641 (N.D. 1976)   Cited 33 times

    We are bound by it, whether we consider the decision of the lower court as conclusive upon us as to issues of fact as a jury verdict is, or whether we are bound by a slightly less severe standard, as the dissent urged * * * [in Kleinjan].Kleinjan v. Knutson, 207 N.W.2d 247 (N.D. 1973). Giving trial court findings the same weight as jury verdicts predates the adoption of Rule 52(a), N.D.R.Civ.P. See Syllabus 1 in James River Nat. Bank v. Weber, 19 N.D. 702, 124 N.W. 952 (1910). See also, Trinity Builders, Inc. v. Schaff, 199 N.W.2d 914, 917 (N.D. 1972), relating the change in status of findings to the repeal of the de novo statute (Chap.

  7. Square Butte Elec. Coop. v. Hilken

    244 N.W.2d 519 (N.D. 1976)   Cited 17 times
    Approving condemnation for a power line even though most power will go out of state

    "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." In Kleinjan v. Knutson, 207 N.W.2d 247, 249 (N.D. 1973), after referring to the above provision from Rule 52(a), we stated: "It follows that if we are to apply this rule, we must apply as a corollary the rule that is applied in jury cases when the sufficiency of the evidence to support the verdict is questioned, and that is that in determining the sufficiency of the evidence to sustain the verdict (here, judge's findings) the evidence must be viewed in the light most favorable to the verdict.

  8. Berry-Inverson Co. of North Dakota v. Johnson

    242 N.W.2d 126 (N.D. 1976)   Cited 33 times
    Adopting the reasoning of both the Montana and Iowa Supreme Courts from Weintz and Myers

    Findings of fact by the district court, in a case tried upon the facts without a jury, will not be set aside by this Court unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P.; Eakman v. Robb, Syll. ¶ 2, 237 N.W.2d 423 (N.D. 1975); Kleinjan v. Knutson, 207 N.W.2d 247 (N.D. 1973). Furthermore, in Eakman v. Robb, supra 237 N.W.2d at 424, in paragraphs 4 and 5 of the syllabus, we held: "4. A finding is `clearly erroneous' only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.

  9. Johnsrud v. Lind

    219 N.W.2d 181 (N.D. 1974)   Cited 1 times

    It is in a case such as this that due regard must be given to the opportunity of the district court to judge the credibility of the witnesses, for that court had the opportunity to hear and observe those witnesses. Kleinjan v. Knutson, 207 N.W.2d 247, Syll. ¶ 1 (N.D. 1973). In the recent case of In re Estate of Elmer, 210 N.W.2d 815, 820 (N.D. 1973), we applied the "clearly erroneous" rule to the findings of the district court, and, in our discussion of the application of such rule, we said:

  10. In re Estate of Blank

    219 N.W.2d 815 (N.D. 1974)   Cited 4 times

    "Nevertheless, we are bound by Rule 52(a). We are bound by it, whether we consider the decision of the lower court as conclusive upon us as to issues of fact as a jury verdict is, or whether we are bound by a slightly less severe standard, as the dissent urged in Kleinjan v. Knutson, 207 N.W.2d 247 (N.D. 1973). * * * * * *