Burdick v. Mann

• Citation: 231 N.W. 545,59 N.D. 611
• Decision Date: 01 July 1930
• Court: United States State Supreme Court of North Dakota

231 N.W. 545

59 N.D. 611

U. L. BURDICK, Respondent, v. BEATRICE MANN, Appellant

Supreme Court of North Dakota

July 1, 1930

Appeal from the District Court of Burleigh County, Grimson and Lowe, JJ. Defendant appeals from an order denying a motion to vacate an order advancing the cause upon the calendar; from an order overruling a special appearance and objections to jurisdiction; from an order denying a motion to abate and dismiss the action and from an order denying the motion for a continuance.

Appeal dismissed.

F O. Hellstrom, for appellant.

"Jurisdiction to make the judgment or order is as essential as its jurisdiction of the person and of the subject-matter." Church, Habeas Corpus, § 236; Miskimins v. Shaver (Wyo.) 49 L.R.A. 831, 58 P. 411; Ex parte Degener, 30 Tex.App. 366, 17 S.W. 1111; Ex parte Cox (Idaho) 32 P. 197; Ex parte Kelly, 65 Cal. 154, 3 P. 673; note to Koepke v Hill, 87 Am. St. Rep. 173; Ex parte Nielson, 131 U.S 176, 9 S.Ct. 672, 33 L. ed. 118; Re Boule (Mont.) 68 P. 409; Re Knowlton (Cal.) 68 P. 409; Re Knowlton (Cal.) 68 P. 480; State v. Losby (Wis.) 90 N.W. 188.

"When a case is on the docket of the court and is undisposed of before the end of the term, it sometimes is continued to the next term by operation of law in the absence of the statute." People v. Noonan, 276 Ill. 430, 114 N.E. 928.

"All causes on the docket, matured and ready for hearing, which are not determined before the end of a term are continued until the next term." Lovern v. Damron, 95 W.Va. 276, 120 S.E. 757.

"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 & T. Bros. v. Neal, 204 Ill.App. 538.

"An appeal removes the cause to the higher forum and temporarily during the pendency of the appeal, divests the trial court of its jurisdiction." Hertel v. Edwards, 201 Ky 456, 257 S.W. 36.

"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.

Wm. Langer, for respondent.

The court can revoke an order adjourning court to a subsequent day of the term and reconvene. 15 C.J. 885.

"An adjournment to a subsequent day in the term does not adjourn the term or deprive the judges of control of the proceedings." Green v. Morris (Neb.) 77 N.W. 925; Ashford v. McKee (Ala.) 62 So. 879; Carter v. State (Ga.) 80 S.E. 733.

"A jury may be retained without the judge (court) remaining in session continuously from day to day." 15 C.J. 895; Hayes v. Philadelphia R. Co. 99 Md. 413.

Christianson, Nuessle, Burr, and Birdzell, JJ., and Pugh, Dist. J. concur. Burke, Ch. J., being disqualified did not participate; Honorable Thomas H. Pugh, Judge of the Sixth Judicial District, sitting in his stead.

OPINION

PER CURIAM

Plaintiff brought this action to recover for certain services, which he alleges in his complaint that he rendered for the defendant as an attorney at law. The action was originally brought in the district court of Cass county, but on August 26, 1929, it was transferred to the district court of Burleigh county. The case was noticed for trial and appeared upon the December, 1929, term of said court as one of the causes for trial at such term. On December 21, 1929, plaintiff moved that the case be advanced on the calendar. On December 29, 1929, the presiding judge, Honorable R. G. McFarland, entered an order directing that the said December term be reconvened on January 3, 1930, at 10 o'clock A.M. on that day; and further directed that the above entitled action be placed upon the peremptory civil calendar for trial as the second jury case upon such calendar. Thereafter the said Honorable R. G. McFarland duly requested Honorable G. Grimson, one of the judges of the second judicial district, to sit in place of Judge McFarland as judge upon the trial of the said cause. Upon the case being called for trial by Judge Grimson on January 3, 1930, the defendant appeared specially by her attorney F. O. Hellstrom, and so appearing made objection to the jurisdiction of the court. The objection assailed the legality and validity of the order entered by Judge 3, 1930, and setting the above-entitled action for trial upon the peremptory civil calendar as the second jury case. Judge Grimson entered an order overruling the special appearance and objections to jurisdiction. Thereupon the defendant filed an affidavit of prejudice against Judge Grimson and such proceedings were had comformably to law that the Honorable John C. Lowe, one of the judges of the fifth judicial district, was called in to sit in the place of Judge Grimson as trial judge. When the case was called for trial by Judge Lowe on January 4, 1930, the defendant appeared by her said attorney and moved that the order that had been entered by Judge McFarland on December 29, 1929, be vacated and set aside. The motion was denied. The defendant then moved that the action be "abated" as quoted and dismissed. The motion was denied. The defendant thereupon moved the said court that the cause be continued over the term. This motion was also denied. The defendant has appealed to this court from the said last mentioned four orders, to-wit: from the order entered by Judge Grimson on January 3, 1930, overruling the defendant's special appearance and objection to jurisdiction; from the order entered by Judge Lowe on January 4, 1930, denying defendant's motion to vacate and set aside the order entered by Judge McFarland on December 29, 1929; from the order entered by Judge Lowe on January 4, 1930, overruling defendant's motion for a dismissal and abatement of the above action, and, from the order entered by Judge Lowe on January 4, 1930, denying defendant's motion for a continuance.

At the threshold of the case we are confronted with the question whether any of the four orders sought to be reviewed is appealable. It is elementary that the right to appeal from an interlocutory order is purely a statutory one. Ellingson v. Northwestern Jobbers Credit Bureau, 58 N.D. 754, 227 N.W. 360. The statutes of this state provide that an appeal lies to the supreme court from the following orders:

"1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.

"2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.

"3. When an order grants, refuses, continues or modifies a provisional remedy, or grants, refuses, modifies or dissolves an injunction or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding or pursuant to the provisions of § 8074 of this code; when it sets aside or dismisses a writ of attachment for irregularity; when it grants or refuses a new trial or when it sustains or overrules a demurrer.

"4. When it involves the merits of an action or some part thereof; when it orders judgment on application therefor on account of the frivolousness of a demurrer, answer or reply on account of the frivolousness thereof.

"5. Orders made by the district court or judge thereof without notice are not appealable; but orders made by the district court after a hearing is had upon notice which vacate or refuse to set aside orders previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice." Comp. Laws 1913, § 7841.

Appellant contends that the orders sought to be reviewed here involve the merits of an action or some part thereof and, hence, fall within subdivision 4, § 7841, supra. A careful consideration of the question leads us to the conclusion that the contention thus advanced is not well founded. The meaning of the phrase "involves the merits of an action or some part thereof" in statutes relating to appeals from interlocutory orders has been considered by many courts and legal writers; it has also been considered by this court in many cases. It is not always easy to determine whether a given order falls within the provisions of such statutes. Ellingson v. Northwestern Jobbers Credit Bureau, 58 N.D. 754, 227 N.W. 360.

In Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357, this court said: "The term 'merits' as used by the profession, when applied to actions, usually denotes the subject or ground of an action as stated in the complaint, or the grounds of defense as stated in the answer; and a trial of the merits of an action generally means the elicitation of evidence in support of the averments of fact set out in the pleadings. But the courts, in construing statutes governing appeals from interlocutory orders, have frequently enlarged this meaning, and have held that the phrase, 'involves the merits,' must be so interpreted as to embrace orders which pass upon the substantial legal rights of the suitor, whether such rights do or do not relate directly to the cause of action, or subject-matter in controversy."

The Encyclopaedia of Pleading and Practice (2 Enc. Pl. & Pr. 75) says: "Where statutes allow an appeal from interlocutory orders 'affecting a substantial right' or 'involving the merits,' an order in the nature of a final judgment decisive of some question or point in the case is meant, as distinguished from mere rulings on matters of practice arising during the progress of the cause."

In Corpus Juris (3 C.J. 452) it is said: "An order 'involving the merits,' within the meaning of the statute, must be decisive of the question involved in the cause or of some strictly legal right of the party appealing as...