Coan v. Plaza Equity Elevator Co.

• Court: North Dakota Supreme Court
• Writing for the Court: BURKE
• Citation: Coan v. Plaza Equity Elevator Co., 60 N.D. 51, 232 N.W. 298 (N.D. 1930)
• Decision Date: 14 October 1930
• Docket Number: No. 5806.,5806.
• Parties: COAN v. PLAZA EQUITY ELEVATOR CO.

60 N.D. 51

232 N.W. 298

COAN

v.PLAZA EQUITY ELEVATOR CO.

No. 5806.

Supreme Court of North Dakota.

Aug. 4, 1930.

Rehearing Denied Oct. 14, 1930.

Syllabus by the Court.

In an action in equity for a new trial of an action at law on the ground that plaintiff had been deprived of the right to have his case reviewed in the Supreme Court, where it appears from the record that the trial of the law action was determined adversely and to the prejudice of the plaintiff, that the court reporter who took the testimony in the trial of the law action died while a motion for a new trial was pending in the law action, that a transcript of the testimony taken at the trial of the law action was necessary on appeal from the order denying a new trial, that no stenographer or reporter could be found to transcribe the notes taken at the trial of the law action, that there was no adequate remedy at law, the plaintiff is entitled to a new trial of the law action.

Appeal from District Court, Ward County; Geo. H. Moellring, Judge.

Action by Frank Coan against the Plaza Equity Elevator Company, a corporation, for a new trial. Judgment for plaintiff, and defendant appeals.

Affirmed.

F. F. Wyckoff, of Stanley, for appellant.

F. B. Lambert, of Minot, for respondent.

BURKE, C. J.

On December 1, 1927, the plaintiff brought an action against the defendant to recover $2,803.50, the value of certain grain the plaintiff delivered to the defendant in the fall of 1924, and which grain the plaintiff claims the defendant converted. There was a verdict for the defendant upon which judgment was entered March 14, 1928.

On May 23, 1928, a notice of motion for a new trial was served returnable on the 13th of June, 1928, which was submitted on written brief. On September 12, 1928, the trial judge filed a memorandum opinion stating that the motion for a new trial would be denied, and on September 25, 1928, an application was made by plaintiff for a reconsideration of said motion. In September, 1928, the attorney for plaintiff made inquiry from the court reporter for an estimate of the cost of the transcript which he received on October 3, 1928, and on November 14, 1928, the trial judge, after a consideration of the application for a reconsideration of the motion for a new trial, wrote to the attorneys that he would adhere to his former opinion, and on November 22, 1928, a final order was made denying a new trial.

The court reporter who took the testimony died on the 2d day of November, 1928, and on the 15th day of March, 1929, this action was commenced for the purpose of securing a new trial of the first action, alleging that the death of the reporter precluded the plaintiff from having the case reviewed by the Supreme Court on appeal.

At the trial of this action, the court found as a fact that an action was commenced by the plaintiff against the defendant for the conversion of some 1,300 bushels of rye and some wheat which was tried to a jury, and a verdict rendered and filed in said court on the 21st day of February, 1928, upon which judgment was entered dismissing the action; that on May 31, 1928, and within the proper time, notice of motion for a new trial, the hearing of which was set for the 13th day of June, 1928, based on all the records and files in the case, a number of affidavits, the minutes of the court, eighteen assignments of error, and seven specifications of particulars, wherein it was alleged that the evidence was insufficient to justify the verdict; that there was a memorandum opinion in which it was stated that the motion would be denied by a formal order; that plaintiff's counsel immediately upon receipt of memorandum opinion of the court made application for reconsideration of the motion with an additional brief; that application was made to the official court reporter for an estimate of the cost of the transcript for an appeal which was furnished on the 2d day of October, 1928; that preparation for financing the appeal was made immediately after the...