Bevey-Shute Lumber Co. v. Donahue

• Decision Date: 08 September 1919
• Citation: 43 N.D. 247,175 N.W. 205
• Parties: BEVEY-SHUTE LUMBER CO. v. DONAHUE et al.
• Court: North Dakota Supreme Court

43 N.D. 247

175 N.W. 205

BEVEY-SHUTE LUMBER CO.

v.DONAHUE et al.

Supreme Court of North Dakota.

July 18, 1919.

Rehearing Denied Sept, 8, 1919.

Syllabus by the Court.

Following Gohl v. Bechtold, 37 N. D. 141, 163 N. W. 725, and prior decisions, it is held, under section 7966, Comp. Laws 1913, an action is terminated when the time for an appeal from the judgment has expired, and the trial court has no authority thereafter to entertain a motion for a new trial, over the objection of the adverse party, unless the final character of the judgment had been suspended by proceedings commenced prior to the time for appeal has expired.

The final character of the judgment is not suspended by an ex parte application for an extension of the time in which to move for a new trial and an ex parte order entered thereon.

Appeal from District Court, Eddy County; Buttz, Judge.

Action by the Bevey-Shute Lumber Company against Gertrude M. Donahue and another. Judgment for defendants. From an order denying its motion for a new trial, plaintiff appeals. Order affirmed.

Grace, J., dissenting.Rinker & Duell, of New Rockford, and Cuthbert & Smythe, of Devils Lake, for appellant.

N. J. Bothne, of New Rockford, for respondents.

PER CURIAM.

In this case defendants recovered judgment. Notice of entry thereof was served upon plaintiff's attorney on March 7, 1918. No appeal was taken from the judgment. The plaintiff prepared and served a proposed statement of case, and noticed the same for settlement on August 10, 1918. It also noticed a motion for judgment notwithstanding the verdict or for a new trial for hearing at the same time. Defendants' counsel asserted that such motion could not be noticed or heard until after the statement had been settled. Plaintiff thereupon withdrew such motion. The proposed settlement of the statement of the case came on for hearing pursuant to the notice, and the same was settled on August 12, 1918. On the same day, after the statement had been settled, plaintiff's counsel was informed that the trial judge would be absent from the district for some time, and unable to hear the motion for a new trial until some time in September. Thereafter, on August 12, 1918, plaintiff's attorney presented to the trial court an affidavit setting forth those facts and asked that the time in which to move for a new trial be extended until October 1, 1918. The trial court entered an ex parte order extending the time accordingly. The plaintiff's attorney thereafter on September 11, 1918, served notice of a motion for new trial, such motion to be heard September 20, 1918. When the motion came on for hearing, defendants' counsel made special appearance and objected to the said consideration thereof on the ground that the action had been terminated, that it was no longer pending, and that the trial court had no power to entertain the motion. The trial court made no ruling on the objections. In his memorandum decision the trial judge intimated that he believed the objections to be well taken, but did not base his decision on that ground. The decision was based upon the ground that plaintiff had received a fair trial, and that, wholly aside from the objections, the motion for a new trial should be denied.

[1] In this court respondents have urged the same objections which they made in the court below, viz.: That the trial court was without authority to entertain the motion for a new trial. Questions similar, or analogous, to the one now under consideration, have been considered by this court in the following cases: Grove v. Morris, 31 N. D. 8, 151 N. W. 779;Higgins v. Rued, 30 N. D. 551, 153 N. W. 389;Garbush v. Firey, 33 N. D. 154, 156 N. W. 537;Skaar v. Eppeland, 35 N. D. 116, 159 N. W. 707;Gohl v. Bechtold, 37 N. D. 141, 163 N. W. 725. The rule announced in those cases is to the effect that, when the time for appeal for judgment has expired, the trial court has no authority thereafter to entertain a motion for a new trial under the objection of the adverse party, unless the final...