Burdick v. Mann
| Decision Date | 25 April 1931 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Burleigh County, Lowe, J Action by U. L. Burdick against Beatrice Mann. From a judgment for plaintiff and an order denying motion for new trial, defendant appeals.
Affirmed.
F O. Hellstrom and H. A. Mackoff, for appellant.
"An adjournment to the date fixed for the beginning of the next regular term puts an end to the current term." State v. Todd, 72 Mo. 288.
"A superior court term ended when the judge left the bench for the term, though no notice was given of final adjournment and it was understood that the term should expire by limitation." Dunn v. Taylor, 121 S.E. 659. See State v. Canal Constr. Co. 203 S.W. 704; Myers v. Brooks, 102 S.E. 369.
State v. Beaverstad, 12 N.D. 527, 97 N.W. 548.
A final disposition of a discretionary matter is appealable, where an abuse of discretion is charged. Central Trust Co. v. U.S. Light & Heat Co. 147 C.C.A. 356, 233 F. 420.
Pendency of a former suit as abatement of present suit may be raised by motion to dismiss. Israelite House of David v. Hansel, 227 Mich. 351, 198 N.W. 907; Goodman v. Benjamine Rutchik, 171 N.Y.S. 152; Cahoon v. First Nat. Bank, 112 Neb. 462, 199 N.W. 830; Zurlick v. Stankus, 125 Misc. 457, 211 N.Y.S. 342; Reis v. Applebaum, 170 Mich. 506, 136 N.W. 393.
"All causes on the docket, matured and ready for hearing, which are not determined before the end of the term are continued until the next term." Luvenere v. Darmon, 120 S.D. 757, 95 W.Va. 276; People v. Noonan (Ill.) 114 N.E. 928; Jessie v. Slaughter, 205 Ky. 271, 265 S.W. 783; Ammendy v. Sorrento Cheese Co. 179 N.Y.S. 62.
After the filing of an appeal bond, a trial court has no right to make any further orders in the case without first setting aside the order for appeal and approval of the bond. Mason & Trent Bros. v. Neal, 204 Ill. 538; Oth v. Wabash R. Co. 193 S.W. 290; State v. District Ct. 61 Mont. 346, 202 P. 575; Hertel v. Edwards, 201 Ky. 456, 257 S.W. 36; Moreland v. Monarch Min. & Mill. Co. 55 Mont. 419, 178 P. 175.
A motion to dismiss an appeal can be made only in the appellate court. Engelkin v. Justice Ct. 46 Cal.App. 512, 189 P. 298. See also Lewis v. Martin, 210 Ala. 401, 98 So. 635.
William Langer, for respondent.
McKenna, Dist. J. Christianson, Ch. J., and Nuessle and Birdzell, JJ., concur. Burke, J., being disqualified, did not participate; Geo. M. McKenna, Judge of the Third Judicial District, sitting in his stead. Burr, J. (dissenting).
Plaintiff instituted this action to recover the sum of $ 10,000, the alleged reasonable value of professional services which plaintiff claims to have rendered the defendant at her special instance and request in his capacity as attorney and counselor at law.
The answer of the defendant, while admitting the employment of the plaintiff as her attorney, denied the value of the services, and set up a counterclaim, alleging that she had been damaged by the carelessness and negligence of the plaintiff in handling her litigation in the sum of $ 173,000. The jury found against the defendant upon her counterclaim, and returned a verdict in favor of the plaintiff in the sum of $ 9,000.
The record discloses that in the year 1917 the defendant and George D. Mann were husband and wife, and at that time purchased at a receiver's sale the newspaper and publishing business known as the "Bismarck Tribune," for the sum of $ 13,600. The sum of $ 6,500 for the purchase of the property was advanced by the defendant, and this was later repaid to her from the profits of the Bismarck Tribune Company. The balance of the purchase price was likewise paid from time to time from the profits of the business. Mr. and Mrs. Mann then organized the Bismarck Tribune Company, a corporation, with a capital stock of $ 25,000, divided into 250 shares of the par value of $ 100 each. The incorporators of the Bismarck Tribune Company were the defendant and her husband and her sister, Minnie Ostrander, and they were the sole stockholders. Two hundred forty-eight shares of stock were issued in the name of the defendant, one share in the name of her sister and one share in the name of her husband. Her stock certificate, however, remained in the stock book, and was never withdrawn by her until October, 1927, when some difficulty arose between her and her husband. George D. Mann was the president and general manager of the company, the defendant was secretary and treasurer, and the three stockholders constituted the board of directors. From 1917 to 1924 the defendant took a more or less active part in the business. From 1924 to 1927 the defendant spent a large portion of the time in Boston, Massachusetts, because of the illness of her daughter and because of her desire to educate her daughter and her foster daughter. The business of the Bismarck Tribune Company had grown by leaps and bounds, so that for a number of years prior to 1927 the defendant and her husband were each drawing from the business $ 200 a week, and the profits were approximately $ 40,000 to $ 60,000 a year. In 1927 the fiscal valuation of the Bismarck Tribune Company was about $ 309,000, $ 50,000 of which was for the good will of the business and $ 25,000 for the Associated Press franchise.
In October, 1927, George D. Mann commenced an action in the district court of Burleigh County to restrain the defendant from interfering with the business of the Bismarck Tribune Company, and to determine the ownership of the stock. And it was at this time that the defendant first employed the plaintiff, Mr. Burdick, as an attorney to look after her interests.
The evidence shows that at the time of the trial the plaintiff was 50 years of age; had been a resident of North Dakota for 48 years; was a graduate of the University of Minnesota; had been engaged in the active practice of law in North Dakota for 25 years; was a member of the State Legislature in 1907; Speaker of the House in 1909; Lieutenant Governor in 1911; State's Attorney of Williams county for 6 years; and was then Assistant United States District Attorney at Fargo, and general counsel for the Farmers Union, with a law office at Fargo and a branch office at Williston, North Dakota.
On October 17, 1927, the plaintiff came to Bismarck at the solicitation of the defendant, and was employed by her as chief counsel to take care of all matters that might arise touching her property rights in the Bismarck Tribune Company and also any further litigation that might be commenced. Judge Jansonius had issued a restraining order in the injunction suit, restraining the defendant and her auditor, Mr. Luehe, of Minot, from interfering in any way with the business of the Bismarck Tribune Company. The plaintiff secured a modification of this order, allowing an audit to be made, but the original injunction restraining the defendant from appearing in the Bismarck Tribune Company plant or taking part in the management of its affairs continued in force. It was about this time that the defendant withdrew from the stock book the certificate of stock issued in her name for 248 shares. A few days later George D. Mann commenced an action for divorce against the defendant, and the plaintiff, as attorney, appeared for the defendant and served an answer in the case. There was an amended complaint in the divorce proceedings, and also an amended answer and a cross-bill filed by the defendant in which she asked for a divorce. From this time until February, 1928, there were numerous consultations between the plaintiff and the defendant in reference to her rights, and in reference particularly to a possible settlement of the divorce proceedings and her property rights. During this period other counsel had also been employed to look after the defendant's interests and to assist Mr. Burdick, namely, the firm of Lovell & Horner, of Fargo, the firm of Dullam, Young & Burke, of Bismarck, and George A. Bangs, of Grand Forks. Both the injunction suit and the divorce suit came up for trial before Judge C. W. Buttz at Bismarck about the 13th of February, 1928. George D. Mann was represented by the firm of Sullivan, Hanley & Sullivan, of Mandan, and Zuger & Tillotson, of Bismarck. Numerous consultations were had between the attorneys, and finally on February 17, 1928, a stipulation of settlement was made, by which it was agreed that the defendant was to receive from George D. Mann the sum of $ 165,000, secured by a bond issue upon the entire property and plant of the Bismarck Tribune Company, at the rate of 5% per annum. The bonds were payable at the rate of $ 6,000 every six months for a period of 23 years, making an aggregate of $ 278,000. In addition, the defendant received the family home at Bismarck and its contents, worth from $ 30,000 to $ 35,000, the family Cadillac automobile, valued at about $ 1,500; and was awarded the custody of her minor daughter, Eleanor Mann. Defendant was permitted to prove up her divorce action, securing a divorce on the grounds of cruelty and inhuman treatment. There being some question as to the validity of these bonds, the plaintiff instituted proceedings before Judge Buttz to have...
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