Felix v. Lehman

• Citation: 20 N.W.2d 82,74 N.D. 125
• Decision Date: 05 October 1945
• Docket Number: 6986.
• Parties: FELIX v. LEHMAN.
• Court: North Dakota Supreme Court

20 N.W.2d 82

74 N.D. 125

FELIX v. LEHMAN.

No. 6986.

Supreme Court of North Dakota

October 5, 1945

Rehearing Denied Oct. 22, 1945.

Syllabus by the Court.

1. Irregularity in the proceedings of the court or in any order of the court or in the abuse of discretion by the court which justifies a new trial, means non-conformance by the court to a rule of court or to a law, or the failure to follow the requirements of the law which results in preventing a party to an action from having a fair trial.

2. Where, during the progress of the trial, a party to the action states in open court that she had no opportunity to have her witnesses present in court, but fails to ask the court for a continuance to afford her an opportunity to get her witnesses, makes no showing as to her efforts to have her witnesses present, fails to show what their testimony would be, fails to invoke any action by the court, and the record shows no irregularity in the proceedings of the court an order granting a new trial because of irregularity in the proceedings of the court must be reversed.

Odin Strandness, of Fargo, for appellant.

Burdick & Burdick, of Fargo, for respondent.

BURR, Judge.

This is an appeal from the order of the county court of Cass County granting a new trial. The action was commenced November 1944. The complaint demands judgment for $508.91 and for the market value of 35 bushels of wheat, 303 bushels of oats, and one-third the value of 17 calves--all claims based upon a farm contract made with defendant. The value of the grain and of the calves is not stated.

The answer dated December 8, contains a general denial and sets forth claims against plaintiff with demands for judgment aggregating $1073.00. A reply was served December 18.

On January 23, 1945, plaintiff served notice of trial, stating the 'action will be brought on for trial at the February 8th 1945 term of County Court--or as soon thereafter as said case may be reached for trial.'

The record fails to show why the case was not heard at the February term; but on April 10, 1945, the clerk of the county court mailed to the defendant a written notice stating the trial of this case was 'set for Friday, April 13, 1945, at 10:00 A.M. Central War Time.' The court states this was done at the request of her counsel. This notice was received by defendant on April 12.

The record shows that at 10:00 A.M. of April 13, the defendant was in court for the trial, with her counsel. Four witnesses were sworn for the plaintiff and testified. The defendant was called as a witness in her own hehalf, testified, and was cross-examined. Both sides recalled witnesses for further examination. After both sides rested on April 13, the case was adjourned to April 16, at 2:00 P.M. The defendant did not appear at the time set or thereafter. Judgment was ordered for the plaintiff in the sum of $629.11, with an offset to the defendant of $45.00, 'for plowing unfinished by the plaintiff and that said amount be deducted from the total judgment allowed the plaintiff.' Judgment was entered, and notice of the entry of judgment and retaxation of costs served April 16.

There was a change of counsel for the defendant and notice of motion for a new trial was given, the motion to be heard June 18.

The motion is based upon three specifications of error--the only one here for consideration being the first:

'Irregularity in the proceedings of the Court which prevented the defendant from having a fair trial, in that defendant's request of her attorney for continuance of the case was denied, in that the defendant was compelled to go to trial upon the merits without the support and aid of supporting and corroborating witnesses, and in that the defendant was denied the opportunity of sufficient time in which to secure corroborating witnesses and witnesses which would have produced direct evidence of a substantial nature, as a valid defense to the contentions of the plaintiff;'

The only support for the motion is this affidavit by the defendant:

'That affiant states that on the 12th day of April, 1945 was the first she knew that a trial of the above entitled action was to be had on the 13th day of April, 1945; that the annexed notice sent from the Clerk of the County Court marked Exhibit 'A' dated April 10th, 1945 is the only notice received by the defendant, and is the same notice as is referred to above, as having been received by her, at her farm near Argusville, North Dakota.

'That the affiant could not go anywhere because of the muddy roads on the 12th of April, 1945, and had difficulty in getting to Fargo on the morning of the said 13th day of April. That affiant had received no notice from her attorney, Ralph Croal as to the time of trial, and received no notice whatever, except that received as mentioned above, except that sometime earlier, Mr. Croal advised me my case was on the calendar.

'That the affiant was unable to secure witnesses or even contact her said witnesses at said late date, and in fact had not witnesses at said trial. That this fact was communicated to the said Ralph Croal, her said attorney, but was advised to go ahead with the trial anyway.

'That the affiant wanted to have, and could have had the following persons present to testify in her behalf, had there been sufficient time afforded her for that purpose: Violet Teubner, Henry Lehman, Ramon Culp, Francis Culp and John Culp, and Mrs. Arthur Ahneman.'

There is nothing in the record to show that defendant requested her attorney to get a continuance, as she makes no such claim in her affidavit.

The court filed a memorandum opinion, the important portions of which are as follows:

'This is a motion for a new trial based upon a claim by the defendant that she was not given time in which to prepare for trial. It is not a motion, as I understand it, based upon newly discovered evidence, but rather based upon the claim, by her, that she was not given an opportunity to produce the evidence by witnesses that were available, had she been given time to have the witnesses present in Court.

'It is a fact, that a notice of trial was sent from this office to the defendant a couple days before the time of trial. This was done at the request of, or upon the suggestion of, Mr. Croal, who then represented the defendant. There was no other showing that Mrs. Lehman had been informed as to the exact time of trial, although Mr. Croal stated verbally in open Court that he was of the impression that he had talked to Mrs. Lehman about the time of trial. There was no motion made, either before the commencement of the trial nor during the trial of the case, for continuance, but Mrs. Lehman, the defendant, did state once or twice during the trial when she was testifying that she had had no opportunity to get her witnesses into Court. She also stated during the trial, as well as in her affidavit that is now on file, that she received this notice through the mail the day before the case was set for trial.

'I believe the matter is presented here on that point and bear out her statement in that regard. There is no showing here, or any indication of any kind, that she had any other kind of definite notice as to the exact time of the trial.

'There is evidence and fact indicating that there had been considerable negotiation back and forth between parties and lawyers, but that, of course, would not constitute a notice as to the time of trial before the case was even set down for trial. I am reluctant to have to go over this again, but at the same time every person is entitled to have his case fully and fairly presented, and is entitled to a reasonable time in which to prepare for trial. In this case, I do not believe that the defendant had reasonable time, after case was set for trial, in which to prepare and get her witnesses in here. As to what these witnesses could testify to, or how their testimony might affect the case, is in my opinion immaterial. If this were a motion based upon newly discovered evidence, the situation might be different. In that case, it would be necessary to file affidavits of the witnesses, in order to have the Court make some determination as to whether or not there is any likelihood of any newly discovered evidence changing the results of the case. But that is not the point here, so I am compelled to grant the defendant's motion for a new trial.'

On July 13, the court granted the motion and ordered, 'a new trial on the merits.'

The claimed basis for this motion is subdiv. 1, of sec. 28-1902 of the Rev.Code, which provides that a new trial may be granted for 'Irregularity in the proceedings of the court * * * or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.'

There is no showing, nor even claim, that the trial was not conducted with regularity, decorum and scrupulous adherence to required procedure; nor that any order of the court was irregular in any respect.

The only basis for the ...