Baird v. Unterseher

• Decision Date: 06 April 1929
• Docket Number: No. 5580.,5580.
• Citation: Baird v. Unterseher, 57 N.D. 885, 224 N.W. 306 (N.D. 1929)
• Parties: BAIRD v. UNTERSEHER et al.
• Court: North Dakota Supreme Court

57 N.D. 885

224 N.W. 306

BAIRD

v.UNTERSEHER et al.

No. 5580.

Supreme Court of North Dakota.

March 4, 1929.

Rehearing Denied April 6, 1929.

Syllabus by the Court.

Upon an appeal from an order granting a new trial, when the motion is made upon several grounds, the question is, not whether the trial judge was warranted in granting it upon a single ground, but is rather whether upon the whole record and upon any of the grounds urged it should have been granted.The presumption is that the order was properly granted, and the burden is upon the appellant to show that none of the grounds urged in the motion was sufficient.Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314.

An order granting a motion for new trial on the ground of the insufficiency of the evidence to sustain the verdict, of newly discovered evidence, or of accident or surprise is one which is within the sound discretion of the trial court, and will not be disturbed, unless it appears there was an abuse of that discretion.

The record in the instant case examined, and held, for reasons stated in the opinion, that it does not appear that there was an abuse of discretion on the part of the trial court in granting plaintiff's motion for a new trial.

Appeal from District Court, Mercer County; H. L. Berry, Judge.

Action by L. R. Baird, as receiver of the Mercer County State Bank, against John Unterseher, Jr., and Gust Schlender.Verdict for defendant last named, and, from an order granting plaintiff's motion for a new trial, defendant last named appeals.Affirmed.Hyland & Foster, of Bismarck, for appellant.

Zuger & Tillotson, of Bismarck, for respondent.

NUESSLE, J.

The plaintiff is the receiver of closed banks.He brought this action as receiver of the Mercer County State Bank to recover on a note executed by the defendants.The defendant Unterseher defaulted.The defendant Schlender answered, setting up the release and discharge of his liability upon the note.The case was tried to a jury.The defendant had a verdict.The plaintiff moved for judgment notwithstanding the verdict or in the alternative for a new trial.The court denied the motion for judgment notwithstanding, but granted the motion for new trial.From the order entered accordingly the defendant perfected the instant appeal.

It appears that the defendants executed the note in suit in January, 1921.At that time Albert Sailer was the president of the Mercer County State Bank and Walter Bohrer was its cashier.These men were in active charge of the bank.The note was given for a loan of money by the defendant Unterseher, who, being already indebted to the bank, procured the defendant Schlender to sign it with him.On December 7, 1921, some arrangement was made between Unterseher and the bank whereby he executed notes in renewal of his indebtedness together with a mortgage as security for the same.At that time E. R. Sailer was employed in the bank as assistant cashier.He had begun working for the bank in October, 1921.Schlender's testimony is that, at the time the mortgage was executed by Unterseher in December, 1921, the bank agreed to discharge Schlender from his liability on the note in suit; that at that time the note itself was up as collateral in the First National Bank of Fargo, but that a copy thereof marked “paid” was delivered by the bank to Unterseher for delivery to Schlender.Schlender produced such a copy which was in the handwriting of Bohrer.Albert Sailer and Bohrer both denied that any such arrangement was made with reference to Schlender.Schlender testified that it was made with E. R. Sailer.Neither E. R. Sailer nor Unterseher were called as witnesses.In support of the motion for a new trial, the plaintiff submitted the affidavit of B. F. Tillotson.This affidavit set out that Tillotson was the attorney who had charge of the preparation and trial of the case; that prior to the trial he was informed and led to believe, and still believes, that the management of the bank and the matter of making settlements and releasing security was in the hands of Albert Sailer and Bohrer up to and after the 7th day of December, 1921, when Schlender claims he was released; that this information was obtained through the employees of the plaintiff from Albert Sailer; that he was informed and led to believe, and still believes, that E. R. Sailer was until January, 1922, employed in the bank as a clerk without authority to make settlements or release debtors from liability upon notes or obligations to the bank, and that he did not make such settlement or give such release; that, when Schlender testified as he did, it was a matter of surprise which could not have been guarded against by ordinary prudence; that at the time of the trial when such testimony was given E. R. Sailer was and now is a resident of the state of Iowa, and that plaintiff was therefore unable to procure him as a witness.Plaintiff further produced the affidavit of E. R. Sailer setting forth that he had made no arrangement with Schlender or Unterseher whereby Schlender was to be released from liability on the note; that Sailer began his employment in October, 1921; and that he had no authority to make extensions or give releases except under the direction of Albert Sailer or Bohrer.

[1] The motion for new trial was...