Opinion
File No. 8797.
Opinion filed October 10, 1945.
Rehearing Denied November 8, 1945.
Appeal and Error.
A judgment was not reviewable on ground of insufficiency of evidence to sustain verdict and judgment and amount of damages awarded where appellant did not comply with statutory provisions relating to grounds for granting new trial. SDC 33.0710, 33.1605(6), 33.1607.
Appeal from Circuit Court, Minnehahfa County; Hon. L.L. Fleeger, Judge.
Action by Louis Gednalski against Dell Rapids Quarry Company to recover for injuries sustained. From a judgment for plaintiff, defendant appeals.
Affirmed.
Hugh S. Gamble, of Sioux Falls, for defendant and Appellant.
Stordahl May, of Sioux Falls, for plaintiff and Respondent.
This is an action for damages which was tried to a jury and resulted in a verdict and judgment in favor of the plaintiff. The defendant has appealed from the judgment and seeks to review in this court the sufficiency of the evidence, first, on the basis that the evidence is insufficient to sustain the verdict and judgment for the reason that such evidence shows that the plaintiff was contributorily negligent and, second, that the evidence is insufficient to sustain the amount of damages awarded by the jury. The trial court submitted the case to the jury under instructions to which no exceptions were taken by the defendant. Nor did the defendant submit any requests for instructions. There was no motion for a directed verdict or a motion for a new trial and there is nothing in the record in the way of offer, objection, or exception which presented to the trial court the sufficiency of the evidence to justify the verdict.
SDC 33.1605 provides as one of the grounds for granting a new trial "(6) Insufficiency of the evidence to justify the verdict or other decision or that it is against law." SDC 33.1607 provides that "An application for a new trial shall not be necessary as a prerequisite to obtain appellate review as to matters specified in subdivisions (6) and (7) of section 33.1605, and all of such matters may be reviewed on an appeal from the judgment, regardless of whether a motion for a new trial has been made, provided such matter has been submitted to the trial court as prescribed in section 33.0710." SDC 33.0710 to which reference is made in the above-quoted SDC 33.1607 prescribes "Such of the matters specified in subdivisions (6) and (7) of section 33.1605 as may have been timely presented to the trial court by motion for directed verdict, request for findings, or other apt motion, offer, objection or exception may be reviewed on appeal from the judgment without necessity for an application for new trial."
A noncompliance with the statutory provisions quoted above precludes a review by this court of the questions tendered by appellant's brief. Upon the record here presented the judgment appealed from must be and is affirmed.
All the Judges concur.
HAYES, C.J., sitting for POLLEY, J.