Barrett v. Smith

• Decision Date: 29 May 1931
• Docket Number: No. 28341.,28341.
• Citation: 183 Minn. 431,237 N.W. 15
• Parties: BARRETT et al. v. SMITH et al.
• Court: Minnesota Supreme Court

237 N.W. 15

183 Minn. 431

BARRETT et al. v. SMITH et al.

No. 28341.

Supreme Court of Minnesota.

May 29, 1931.

Appeal from District Court, Hennepin County; W. C. Leary, Judge.

Action by John D. Barrett and another against Hassel M. Smith and others. From orders denying motions for amended findings or a new trial, plaintiffs and defendants appeal.

Defendants' appeal dismissed, and order denying plaintiffs' motion affirmed.

George S. Grimes, of Minneapolis, for appellants.

Junell, Oakley, Driscoll & Fletcher, of Minneapolis, for respondents.

STONE, J.

Defendant Cedar Lake Ice & Fuel Company is a Delaware corporation, licensed to do business in this state. It has its principal office, and all of its business is transacted, in Minneapolis. The other defendants are its directors and managing officers. Plaintiffs are minority stockholders. In this action they charge defendants, particularly defendant Smith, as treasurer and general manager, and defendant Ellison, as president, with mismanagement and conversion of corporate funds. By the decision below, plaintiffs were awarded in part for the benefit of the corporation, and denied in part, the relief they seek. Among the things denied was the appointment of a receiver to wind up the affairs of the corporation in this state. Both plaintiffs and defendants moved for amended findings or a new trial, and both appeal from orders denying such motions. We shall state the facts piecemeal as needed to develop the several points for decision.

1. At the outset we have a question of procedure. The decision below was made May 13, 1930. Defendants made two motions for amended findings or a new trial. The first, heard June 7, 1930, was denied by an order filed July 14, served on counsel for defendants July 15, 1930. Defendants' second motion (made July 29) was based upon the same general grounds first urged. Set for August 8, it was continued by consent to September 16. Then plaintiffs objected because of the previous motion and expiration of the time for appeal from the order denying it. September 16, 1930, brought the order denying defendants' last motion but reciting plaintiffs' objection and that it had been overruled. From that order defendants appeal. They are met by a motion to dismiss. Plaintiffs argue that the power of the district court, in respect to granting or denying a motion for a new trial, is exhausted after one such motion has been determined and the time for appeal has expired.

That defendants' second motion was considered on the merits is plain from the recital, in the order, of plaintiffs' objection and the statement that it was overruled. That was the equivalent of an order granting leave for the second motion. McLaughlin v. City of Breckenridge, 122 Minn. 154, 141 N. W. 1134, 142 N. W. 134; Fletcher v. Southern Colonization Co., 148 Minn. 143, 181 N. W. 205; First Trust & Savings Bank v. U. S. F. & G. Co., 156 Minn. 231, 194 N. W. 376; LaPlante v. Knutson, 174 Minn. 344, 219 N. W. 184. But all the time the first order remained in effect, with nothing to stay the running of the time for appeal or extend its duration.

As to the power of the district court, after the time for appeal has expired, to reconsider an appealable order or to permit a renewal of the motion or a second motion for the same relief, our decisions are in an unsatisfactory state. They have the background of statutory law set up by Mason's Minn. Stats. 1927 § 9283. That section first declares the power of the district court, subject to limitations not now important, to relieve a party from any judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. Then, disjunctively and by way of addition, follows the declaration that "for good cause shown" the court may "modify or set aside its judgments, orders, or proceedings." In Beckett v. N. W. Masonic Aid Ass'n, 67 Minn. 298, 69 N. W. 923, 924, it was considered that Grant v. Schmidt, 22 Minn. 1; Semrow v. Semrow, 23 Minn. 214; and Weld v. Weld, 28 Minn. 33, 8 N. W. 900, expressed a too limited view of the court's power over its own orders and judgments. The holding there was that the statute just referred to, passed in 1876 after the decision in Grant v. Schmidt, "was clearly intended to do away with the rule of law" there laid down. It was not mentioned that in the Grant, Semrow and Weld Cases judgments rather than orders were in question.

In the Beckett Case the court said: "The order granting a new trial was set aside before the time to appeal from it expired, and we are clearly of the opinion that said amendment [now section 9283] gave the court below authority to set it aside, if deemed erroneous." In Dunnell's Minn. Dig. (2 Ed.) § 7081 there is the statement: "The district court has power to set aside an order granting a new trial, on the ground that such order was erroneously granted, any time before the period for appeal expires." The cases cited in support are Beckett v. N. W. Masonic Aid Ass'n, supra; Cox v. Selover, 165 Minn. 50, 205 N. W. 691, 692; Duffy v. Stratton, 169 Minn. 136, 210 N. W. 866. We have just considered the Beckett Case. In the other two the point was not involved. The decision in Cox v. Selover depended upon an application, not of section 9283, but of section 9326 (Mason's Minn. Stats. 1927), providing that a motion for a new trial, made on the minutes of the court, must be heard within thirty days after the coming in of the verdict unless the time be extended by written stipulation or by the court for cause. That statute is mandatory, but applies only to motions for new trial made on the minutes of the court. Cox v Selover expressly affirms the general "power of the court to vacate its orders." In Duffy v. Stratton the vacating order came within the time for appeal. The present question did not arise and was not even referred to. In National Citizens Bank v. McKinley, 111 Minn. 214, 126 N. W. 526, a litigant was permitted, in effect, to renew a motion for a new trial without suggestion even that the expiration of the time for appeal was important one way or the other. In Pulver v. Commercial Security Co., 135 Minn. 286, 160 N. W. 781, and in Peterson v. Parviainen, 174 Minn. 297, 219 N. W. 180, it was assumed that the power of the district court to modify or vacate an appealable order expired with the time allowed for appeal.

Directly contrary to that assumption is the decision in First National Bank of Fargo v. Briggs, 34 Minn. 266, 26 N. W. 6. There an appealable order was made dissolving an attachment. Before the expiration of the time for appeal the court granted an order to show cause why it should not be vacated. Upon the hearing, the court reconsidered the whole issue and made a new order affirming the original dissolving the attachment. From the last order the appeal was taken, but more than thirty days after notice of the original order. The decision was that, while the time for appeal cannot be extended, "it may, however, result from the exercise of the authority of the court to review, set aside, or modify its own orders, that, upon an appeal from an order redetermining a matter once passed upon by a former order, made more than 30 days before such appeal was taken, there may be brought up for review the same questions involved in the former order."

As to appealable orders other than those denying new trials, we do not hold that they cannot be reviewed by the court making them after expiration of the time for appeal. In Fletcher v. Southern Colonization Co., 148 Minn. 143, 181 N. W. 205, that factor was apparently assumed to lack importance, the objection stressed being only that there was no express leave to renew or reargue the motion to vacate a judgment. Of course, when a judgment has become final by the expiration of the time for appeal, it is no longer open to attack by motion for new trial. Smith v. Minneapolis Street Ry. Co., 134 Minn. 292, 157 N. W. 499, 159 N. W. 623. That is because the law contemplates that a judgment, unreversed and for six months unchallenged by appeal, shall be final, subject only to the right to vacate, as limited by statute, for fraud or other good cause, exclusive of mere error. Gallagher v. Irish-Am. Bank, 79 Minn. 226, 81 N. W. 1057; Gasser v. Spalding, 164 Minn. 443, 205 N. W. 374.

The right of appeal is statutory, as to orders of the district court given by Mason's Minn. Stats. 1927, § 9498. The enumerated orders, including those denying motions for new trial, are made appealable generally, without qualification or elaboration. Neither there, nor in the statute concerning motions for new trials (section 9325), do we find anything terminating the power of the district court, upon expiration of the time allowed for appeal, to vacate an order made before judgment. Never before, so far as we have been able to find, has the question required or received decision in respect to an order. There has never been here "an application of the judicial mind to the precise question necessary to be determined." Carroll v. Carroll, 16 How. 275, 287, 14 L. Ed. 936. Hence the question is open notwithstanding the contrary dicta, already noted, in Pulver v. Commercial Security Co., 135 Minn. 286, 160 N. W. 781, and Peterson v. Parviainen, 174 Minn. 297, 219 N. W. 180. There being no explicit law on the subject, decision must be based upon controlling general propositions.

The district court has general original jurisdiction, with the plenary power characteristic of such courts. Agin v. Heyward, 6 Minn. 110 (Gil. 53); Stahl v. Mitchell, 41 Minn. 325, 43 N. W. 385; Hanford v. Village of Alden, 122 Minn. 149, 142 N. W. 15. Its orders, as we shall stress later, are not res judicata in the strict sense, but subject to review on renewal of the motion or one for modification or even vacation. "Whatever may be done upon motion to the court may, by the court, upon further motion seasonably made by either party,...