Burger v. Sinclair
| Decision Date | 03 January 1913 |
| Docket Number | 81912 |
| Citation | 140 N.W. 231,24 N.D. 315 |
| Parties | BURGER v. SINCLAIR |
| Court | North Dakota Supreme Court |
Motion by appellant to advance the cause upon the calendar of this court.
Motion granted.
Knauf & Knauf, for appellant.
Complaint must state facts to constitute cause of action. James River Nat. Bank v. Purchase, 9 N.D. 281, 83 N.W. 7.
The measure of recovery is the difference in the value of the land before and after the damage. Cleveland School Dist v. Great Northern R. Co. 20 N.D. 124, 28 L.R.A.(N.S.) 757, 126 N.W. 995.
Proper foundation must be laid before opinion evidence as to value can be received. Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359; 5 Enc. Ev. 615.
Knowledge must be shown as to prices at the place where buildings were destroyed. Santa Cruz v. Enright, 95 Cal. 105, 30 P 197; San Diego Land & Town Co. v. Neale, 88 Cal. 50 11 L.R.A. 604, 25 P. 977; Jones v. Mechanics' F. Ins Co. 36 N.J.L. 29, 13 Am. Rep. 405; Guiterman v. Liverpool, N.Y. & P. S. S. Co. 83 N.Y. 365.
Evidence as to value must relate to reasonable "market value." Dana v. Fiedler, 12 N.Y. 40, 62 Am. Dec. 130; Blaen Avon Coal Co. v. McCullon, 59 Md. 403, 43 Am. Rep. 560; Gulf, C. & S. F. R. Co. v. Dunman, Tex. Civ. App. , 31 S.W. 1070; Aultman Co. v. Ferguson, 8 S.D. 458, 66 N.W. 1081; Watt v. Nevada C. R. Co. 23 Nev. 154, 62 Am. St. Rep. 772, 44 P. 423, 46 P. 52, 726; Frick v. United Firemen's Ins. Co. 218 Pa. 409, 67 A. 743; Johnson v. Northern P. R. Co. 1 N.D. 354, 48 N.W. 227; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1.
Carr & Kneeland and S.E. Ellsworth, for respondent.
Appeal or cost bonds must comply with the requirements of the statute governing appeal bonds. Bergevin v. Wood, 11 Cal.App. 643, 105 P. 935; Stewart v. Lyness, 22 N.D. 149, 132 N.W. 768; Aldrich v. Public Opinion Pub. Co. 27 S.D. 589, 132 N.W. 278; Drinkwine v. Eau Claire, 83 Wis. 428, 53 N.W. 673; Bryson v. Lucas, 85 N.C. 397; Harshaw v. McDowell, 89 N.C. 181; Holcomb v. Teal, 4 Ore. 352; Alberson v. Mahaffey, 6 Ore. 412; State ex rel. Mahoney v. McKinmore, 8 Ore. 207; Pencinse v. Burton, 9 Ore. 178; McDonald v. Ellis, 4 Ariz. 189, 36 P. 37; McMillan v. Nye, 90 N.C. 11; Hemphill v. Blackwelder, 90 N.C. 14; Northern Counties Invest. Trust v. Hender, 12 Wash. 559, 41 P. 913; Turner v. Quinn, 91 N.C. 92; Bailey v. Rutjes, 91 N.C. 420; State v. Wagner, 91 N.C. 521; State ex rel. Rayssiguier v. Monroe, 37 La.Ann. 113; Thompson v. Thompson, 24 Wis. 515.
Statement
We have before us for consideration a motion to advance three cases upon the calendar of this court, all of which, though brought by separate plaintiffs, involve practically the same issues. The motion is made upon the somewhat novel, but at the same time reasonable, ground that the appellant (the defendant in the court below) is in danger of having his property sold under execution when, as a matter of fact, he is not only abundantly able to pay the judgment against him if affirmed by this court, but perfectly willing and able to give a cash or other bond to secure and indemnify the plaintiffs. These bonds he has, in fact, already given, for, though strictly speaking, and under the ruling of this court in a former motion (Burger v. Sinclair, post, 326, 140 N.W. 235), he has no legal right, under the statute and at this time, to give a supersedeas bond, but bonds for costs merely, he has, either intentionally or unintentionally, in attempting to give such bonds for costs, given bonds which in terms secure the judgments also. Though such bonds cannot, under our former ruling, operate as supersedeas bonds, they nevertheless would, if accepted, fully indemnify the respondents against all loss, and fully secure their judgments.
The affidavits filed upon this and the former hearings show that defendant is abundantly responsible; that when the appeals were first taken he directed his attorney to have the judgment superseded, and until very recently supposed that this had been done; that his counsel, however, laboring, perhaps mistakenly, under the idea that a supersedeas bond was not necessary in law and under our statute, and certainly relying not only on the well-known solvency of the defendant, but that the plaintiffs and respondents were themselves solvent, and would probably not desire to subject themselves to the liability of three several suits in damages if they levied their executions, and the judgments were, after all, not affirmed, failed and refused to file such supersedeas bonds in the first instance and within the statutory time, and only awakened to the seriousness of his mistake when he not only discovered that the respondents were about to levy their executions, but that they had disposed of some of their property, so that, in case of a reversal of the judgments by this court on appeal, a collection on judgments for damages against them would be problematical. The purpose of asking that these causes be advanced is that they may be disposed of prior to the levy of the executions, and, if the said judgments are reversed, not only the levies averted, but the necessity also averted of bringing the subsequent actions for damages against the plaintiffs and respondents, which, as we said before, may be of no avail on account of the disposition of property by such plaintiffs.
BRUCE, J. (after stating the facts as above). We must remember that the real controversy in this case is not a controversy between the respective counsel, but between their clients, and that the province of this court is not to act as umpire in a fair fight between such counsel, but to see that justice is ultimately done to the litigating parties, and that the administration of the law itself may be reasonable and without just subject for criticism. In the former motions (Burger v. Sinclair, post, 326, 140 N.W. 235) we held that, under the express wording of the statute, we had no jurisdiction or authority to allow the filing of a supersedeas bond, or the filing of a bond which would operate as a supersedeas in this court, and that the time for filing such bond in the district court had, under the statute, expired. We are here, however, asked merely to advance the particular cases on the calendar of this court, so that justice may be done, and unnecessary litigation and annoyance and humiliation obviated. We realize fully that the statute merely requires us to advance cases where some matter of public interest is involved, and that this matter is hardly a matter of public interest under the terms of the statute, though we believe that basic justice to the individual and a reasonable administration of the law is in one sense always a matter of public interest. We do not, however, believe that the statute which provides that matters of public interest shall be advanced prohibits us from advancing other causes when, in our reasonable discretion, it seems fitting that they should be advanced. In fact, we find no courts which have ever taken this position, but have rather taken the position that the control of their own calendars is within their discretion. This fact counsel for respondent, himself, seems to concede. An appeal to the courts is, at the most, a drastic measure. The levy and sale under any execution is, to say the least, humiliating. To insist upon such a levy and sale when, perhaps, the judgment under which the same is sought to be effected will ultimately be declared null and void, is certainly a matter which should be avoided if possible. Especially is this so where there is no doubt of the solvency of the defendant, and no doubt of his willingness and ability to pay any judgment that may be affirmed against him. To insist, indeed, that a defendant shall go through the idle, though humiliating, form of seeing his farm or other possessions, on which he may have labored for a lifetime, sold under the hammer of the sheriff, when the same may be absolutely unnecessary, and can be avoided by merely advancing a case upon the calendar, seems to be limiting judicial discretion altogether too much. This is especially true when there are three cases, all of which can be disposed of on the same argument, and the calendar cleared to that extent. No hardship is worked on the judgment creditors by advancing the appeals for early argument,--only a short delay at most in collecting their judgments if the cases are so advanced, tried, and judgments affirmed. If reversed, no irreparable injury is done such as may result from a denial of this motion.
It may be said that the defendant may redeem from the executions. Even then he would be compelled to bring suit for the recovery of the money so paid, and not only might the question be raised that the payments were voluntary, but, according to some of the affidavits in this case, a collection of the judgments on such suits would be problematical. This court has, in the past, exercised its discretion in the control of its calendar. It has, for instance, in cases where counsel from certain towns or localities have had a number of causes upon the calendar, and by having a number of such argued at one time, the necessity of frequent journeys to the capital has been able to be avoided, allowed such causes to be argued out of their order. If this court can accommodate counsel, it certainly ought to be able to accommodate litigants themselves. Calendars and rules are made for litigants, and not litigants for calendars and rules. When a permissible exercise of discretion will result in administering justice, while a denial of its exercise will work injustice, we should resolve the question in favor of a just result, rather than stand on ceremony concerning the formal method used in reaching the desired end.
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