
    THOMAS PARSONS, Respondent, v. L. E. ROWELL et al., Doing Business under the Firm Name and Style of Spring Butte Threshing Company, Appellants.
    (173 N. W. 761.)
    Review on — appeal — record —■ facts.
    1. In order for the supreme court to review a specified erroneous ruling of the trial court upon appeal, the record must present the facts upon which the trial court acted.
    Appeal — order refusing to modify — wliat facts must he shown.
    2. In an appeal from an order refusing to modify a judgment entered in excess of the amount of the verdict rendered, where the record does not present the facts upon which the trial court acted, it is. held that there is nothing for this court to review.
    Opinion filed June 21, 1919.
    Rehearing denied July 1, 1919.
    
      The defendants appeal from an order of District Court, Hettinger County, Crawford, J., refusing to modify a judgment.
    Affirmed.
    
      Jacobson & Murray, for appellants.
    The rule of law is well settled that the court can only enter judgment in conformity with the verdict, and has no power to order judgment for a larger amount. 23 Cyc. 801, ¶ 6; Alpers v. Schammel (Cal.) 17 Pae. 708; Haldane v. Arcadia (Iowa) 30 N. W. 802; Weatherford v. Planger (Ariz.) 146 Pae. 759.
    The trial court has power after the entry of its judgment to correct it so as to make it correspond with the verdict, and the court can correct of its own motion or upon application of the injured party. 23 Cyc. 873, ¶ 9, 876.
    The fact that the court did not pass upon the application to modify the judgment for more than a year cannot affect defendants’ rights, because they made their motion in due time. If the motion is denied the proper remedy is to appeal from the order denying. 28 Cyc. 881, tH.
    
      M. S. Odie & E. J. Mcllra-ith, for respondent.
    Defendants cannot change front and try the case in the supreme court on a different theory than that which they tried it on in the district court. It is presumed that the district court acted in conformity to the record of the case in judgment. Raad v. Grant, 169 N. W. 588, and authorities therein cited; 2 Enc. PI. & Pr. 425-433.
   Bronson, J.

This is an appeal from an order refusing to modify a judgment. The only papers before this court, in addition to the pleadings, are: Notice of trial, verdict of the jury, order for judgment, the judgment and notice of entry thereof, statement of costs, objection thereto, motion to modify judgment and order denying the same, order granting extension of time in which to appeal, notice of appeal, undertaking, and specifications of error. No statement of the case has been settled. The entire judgment roll is not even presented. From the complaint it appears that the action was instituted to recover for the negligent destruction by fire of certain stacks of millet and oats. The answer denies negligence and alleges plaintiff’s contributory negligence. It also alleges a tender made to and deposit for the plaintiff of $100, and of a tbresbing bill owing amounting to $40 in settlement, and of plaintiff’s refusal to accept tbe same. It then alleges sucb tender as a counterclaim and demands judgment accordingly. In tbe order for judgment tbe court recites that tbe defendants, before trial, tendered tbe sum of $100, and also tbe satisfaction of sucb tbresbing bill of $40, and that tbe court instructed tbe jury to render verdict over and above sucb $140. Tbe jury returned .a verdict of $128.26 for tbe plaintiff. The court ordered judgment for tbe amount, plus tbe tender so made, and judgment was entered accordingly. The appellants later moved to modify tbe judgment to conform to tbe verdict; from tbe order overruling sucb motion tbe defendants have appealed. In an amended certificate, tbe trial judge states that tbe motion to modify tbe judgment was overruled upon tbe entire record in tbe case, including tbe evidence of deposit and offer of payment of tbresbing bill by tbe defendants, tbe instructions of tbe court to tbe jury wherein tbe court instructed tbe jury that their verdict should be for sucb an amount that they found for tbe plaintiff over and above tbe $100 deposit and tbe $40 thresh bill tendered. This court does not know what evidence was introduced, stipulations made, instructions given to tbe jury, what issues were submitted or withdrawn from the jury, or proceedings bad in tbe trial court. It is well settled that he who urges error in tbe order of tbe trial court, must prepare and present a record of tbe facts upon which the trial court acted. State v. Scholfield, 13 N. D. 664, 102 N. W. 878; Schomberg v. Long, 15 N. D. 506, 108 N. W. 332; State v. Gerhart, 13 N. D. 663, 102 N. W. 880; Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314; Erickson v. Wiper, 33 N. D. 193, 225, 157 N. W. 592.

Even tbe instructions of tbe court, a part of tbe judgment, roll, are not presented. Comp. Laws 1913, § 7689. It was tbe duty of tbe appellant to present a record which affirmatively showed error of tbe trial court in its order; every presumption must be accorded in favor of tbe judgment rendered. Raad v. Grant, — N. D. —, 169 N. W. 588. There is accordingly nothing before this court to review. The order of tbe trial court is affirmed, with costs to tbe respondent.

Robinson, J.

(dissenting). This is an appeal from a judgment on a verdict, and it is for a sum largely in excess of tbe verdict. The appeal is taken on the judgment roll. It presents no evidence, no statement of the case, no findings of fact, nor even the charge of the court to the jury. The complaint avers that in October, 1916, by reason of defendants’ negligence in doing some threshing for the plaintiff, the threshing machine set on fire and burned up grain and straw to the damage of the plaintiff $826. The answer contains a general denial. It avers that the value of the grain destroyed did not exceed $126, and that before the commencement of the action, to avoid costs, the defendant tendered to the plaintiff in cash $100 and a release of $40 due on a thresh bill, and that plaintiff refused to accept the same; and that defendant deposited the money to the credit of the plaintiff. The order for judgment avers that defendant has withdrawn the deposit and release, and therefore judgment was given against the defendant for $140 in addition to the verdict, which reads thus: “We, the jury, find for the plaintiff and assess his damages at the sum of $128.26.” The order for judgment was dated November 24, 1917. On May 8, 1919, and after the appeal was taken, the court made a certificate that he had instructed the jury that their verdict should be for such amount as they found for the plaintiff over and above the $100 deposit and the $40 thresh bill. Now if such an instruction was given, it was erroneous. The tender and deposit was not a payment; it was merely a tender of payment; it was an offer of compromise. Hence the verdict should have been for the actual damages, and the court had no right to hear evidence concerning the deposit and to add $140 to the amount of the verdict, though such an error might have been cause for a new trial. But of course justice should not be defeated by any sharp or smooth practice. Hence the judgment should be reversed, with leave to the court to grant a motion for a new trial, and with costs of the appeal to abide the event.

The judgment should be reversed.

Grace, J. I concur in the result arrived at in the dissenting opinion of Justice J. E. Robinson.  