Prescott v. Brooks

This case was before this court on a former appeal. 11 N. D. 93, 90 N. W. 129. The former appeal was taken from only a portion of the judgment and the defendant then sought, as he now seeks, a retrial under § 5030, Revised Codes, which authorizes retrials' in actions tried to the court without a jury. A majority of the court reached the conclusion that a retrial was not authorized by said section upon an appeal from only a part of a judgment, and the appeal was dismissed without prejudice. The defendant has now appealed from the entire judgment.

Counsel for respondent has interposed a motion…