Johnson v. Northern Pacific Railroad Co.
| Decision Date | 29 November 1890 |
| Citation | 48 N.W. 227,1 N.D. 354 |
| Court | North Dakota Supreme Court |
Rehearing Denied January 13, 1891.
APPEAL from district court, Stutsman county; Hon. RODERICK ROSE Judge.
John S Watson for appellant: The degree of care which a railroad is bound to exercise is not dependent on the weather: Mich. Cen R. R. Co. v. Anderson; and the instruction quoted above in paragraph 5 of the syllabus is erroneous. If there is error in the charge in respect to any particular point, judgment cannot be affirmed on other grounds, since it cannot be said that the verdict was not the result of the erroneous instruction: Amaker v. New, 11 S.E. 386. The complaint alleged and the answer denied negligence in handling defendant's engine; the burden was on plaintiff to prove negligence; no attempt to prove it was made; therefore the court's instruction that an engine may cause fires through negligence in its management, was error, because not applicable to the facts proved and because it tended to mislead the jury by directing their attention to an assumed act of negligence: Babcock v. R. R. Co., 33 N.W. 628; Fisk v. R. R. Co., 38 id. 132; Jones v. Mathieson, 2 Dak. 531.
S. L. Glaspell, for respondent: There is no jurisdiction to settle bill of exceptions after the time limited by law or extended by the court has expired: Comp. Laws, § 5083; Hayne on New Trial, p. 773; Higgins v. Mahoney, 50 Cal. 444; Gimbel v. Turner, 14 P. 255; Hake v. Struble, 12 N.E. 676; Finley v. Whitley, 22 N.E. 640; Muller v. Ehlers, 91 U.S. 249; Sisson v. State, 45 N.W. 1129; City v. Shipley, 13 A. 375.
This is an action to recover damages for injuries to property caused by a prairie fire which plaintiff alleges resulted from the defendant's negligence. A verdict and judgment were rendered for plaintiff on December 13, 1889, and by three separate orders the time for preparing and signing a bill of exceptions, and serving a notice of intention to move for a new trial was extended to February 13, March 1, and March 15, 1890, respectively. These orders were duly served on plaintiff's counsel, but were made ex parte, and no cause is spread upon the record for making the same. The notice of intention and the proposed bill were served within the last extension of time, i. e., upon March 14, 1890; but the bill was not settled by the trial court until the period last granted for that purpose had elapsed and not until April 15, 1890. Plaintiff's counsel appeared, and objected to the settlement of the bill, and his objections were entered upon the record as follows: A preliminary motion was made in this court to purge the record by striking out the bill of exceptions for the reasons above stated. In support of the motion, respondent's counsel claims in his brief that "the paper which purports to be a bill of exceptions was settled and signed * * * at a time when the court had no jurisdiction to settle or sign a bill of exceptions; otherwise, the statute limiting such time is of no effect, and the orders of the court extending such time were unnecessary, and there is no limit of time for an exercise of such discretion." In support of his contention that the act of allowing and signing a bill is essentially a jurisdictional act, in the sense that the court is without power to do the act after the time limited by statute or extended for that purpose has expired, counsel cites numerous authorities; among others, the following: Hayne, New Trial, p. 773; Higgins v. Mahoney, 50 Cal. 444; Bunnel v. Stockton, 83 Cal. 319, 23 P. 301; Buckley v. Althoff, (Cal.) 3 Cal. Unrep. 282, 24 P. 635; Gimbel v. Turner, (Kan.) 36 Kan. 679, 14 P. 255; Short v. Railroad Co., 79 Iowa 73, 44 N.W. 539; also Muller v. Ehlers, 91 U.S. 249, 23 L.Ed. 319; and other authorities.
The case last cited follows the rule of the common law which still obtains in the federal courts, and which requires all proceedings in an action of a strictly judicial character, and not ex parte in nature, to be done in term-time. In the case cited the bill was not settled below at the term when the case was disposed of by the trial court, nor was an order entered at such term continuing the matter, and allowing the bill to be settled at a subsequent term. Under the procedure referred to, the court below was without power to allow and sign the bill after adjournment of the term sine die, and hence the supreme court refused to consider it. But this practice has long since been abrogated by statute in Dakota. Section 4828, Comp. Laws, provides, in effect, that the district courts are always open for the purpose of hearing and determining all actions, special proceedings, motions, and applications whatsoever, "except issues of fact in civil and criminal actions." Under the innovations made by the statute, the district courts of the late territory and of the now state of North Dakota, excluding the cases enumerated in the statute, have authority to discharge all their functions, not only at a general or special term, but equally, and to the same extent, when there is, strictly speaking, no term. We think the case, 91 U.S. supra, not in point. The district court had ample jurisdiction to allow and sign the bill when that act was done.
But the bill in this case was not settled within the time granted by the court; and respondent's counsel contends that the act of signing and allowing it was, for that reason, without authority, and void. The cases cited in support of this proposition from California, Kansas, Iowa, and Nebraska fully sustain the contention so far as those states are concerned; but we find, upon examination, that the statutes of the states above mentioned which regulate the allowance and settlement of bills of exception differ radically from our own laws upon that subject. It will be found that, in all the states referred to, the language of the statute, either in express terms or obvious implication, inhibits the settlement of bills and statements after the time limited by law or granted for that purpose has expired. On the other hand, our statute, as amended in 1887, (§ 5093, Comp. Laws,) expressly permits any of the acts connected with the settlement of bills and statements, and giving notice of intention to move for a new trial, to be done after the time has elapsed, and within the time granted after the original period has expired. This amendment inaugurated a departure from the California practice, which had largely prevailed in the territory prior to the adoption of the amendment. We think it was the purpose of the act of 1887 to place the whole matter of settling bills and statements for a new trial, and giving the notice of intention, within the sound judicial discretion of the trial court as to the time within which the several steps in the process may be taken after the statutory limit has been passed. In this view of the statute, the entire process leading up to and including a motion for a new trial, after the statutory limit has expired, and before the time of appeal has elapsed, is a matter of sound discretion with the district courts, and hence cannot be properly classed with questions which go to the jurisdiction of that court. In this case the bill was allowed and settled after the time granted for that purpose had run, and the trial court did not do what it would have been better practice to have done, viz., enter an order of record stating that, for good cause shown, time was extended to the date of settlement. The power to enter such an order on good cause being shown is expressly granted by § 5093, Comp. Laws. We hold that the actual settlement operates ipso facto to extend the time to the date of such settlement. This view is sustained by authority. Volmer v. Stagerman, 25 Minn. 234. This ruling was made under statutes much less liberal than the rules established by the act of 1887, supra. The supreme court of Minnesota placed its decision upon a section of its statute which corresponds to § 4939 of the Compiled Laws.
But the action of the trial court is further criticized by counsel because the several orders of the court extending time were made ex parte, and no reason for making them appears of record. From what has been said, it appears that, if the orders extending time had never been made, the settlement of the bill would be upheld as valid, upon the ground that the fact of settlement operated to extend the time to the date of the actual settlement. However such orders may properly be made ex parte. See 4 Wait, Pr. 595. We certainly think it would be much better practice, in this class of cases, to require cause to be shown in the usual way by affidavit, and the affidavit should be served upon counsel with the order. The moving party should excuse his default, and bring his excuse upon the record. Such practice would promote the due and regular administration of the law, even in cases where the grounds or cause of the order are within the knowledge of the judge who makes the order. But the question for us to decide is whether the bill in this case was legally allowed and settled finally. For the reasons and upon the authority above shown, we hold that it was. Section 5093 Comp. Laws, is a...
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