Freel v. Pietzsch
| Decision Date | 29 September 1911 |
| Citation | 132 N.W. 779,22 N.D. 113 |
| Parties | FREEL v. PIETZSCH |
| Court | North Dakota Supreme Court |
Appeal from District Court, Eddy county; E. T. Burke, J.
Action by Bertha Freel against Fred Pietzsch and wife. From a judgment for plaintiff, defendants appeal.
Reversed and judgment ordered for defendant Fred Pietzsch, and new trial granted defendant Anna Pietzsch.
Judgment reversed as to both appellants, and judgment entered in favor of the appellant Fred Pietzsch for a dismissal of action, and a new trial granted.
Maddux & Rinker and Ball, Watson, Young, & Lawrence, for appellants.
J. A Manly and John Knauf, for respondent.
FISK FRANK, Special Judge. MORGAN, Ch. J., and BURKE, J., not participating. W. J. KNEESHAW and F. E. FISK, District Judges, sitting by request.
Action in conversion for the recovery of the sum of $ 5,000, the face value of three promissory notes alleged to have been executed by defendants to plaintiff on or about April 8 1908, and thereafter and on May 4, 1908, wrongfully converted by defendants to their own use. Judgment was had in plaintiff's favor and against the defendants for the sum of $ 5,000, and they have appealed separately from such judgment, and also from an order denying their motion for judgment notwithstanding the verdict or for a new trial.
Respondent moved to dismiss the appeals on the ground that no notice of appeal from any order denying appellants' motions for judgment notwithstanding the verdict, or for a new trial, was ever served in said action, and no undertaking on appeal made or served; and, further, that no notice of intention to move for a new trial, and no notice of motion for a new trial or for judgment notwithstanding the verdict, was ever served in said action. The action was originally commenced in the name of Frederick Freel, as guardian ad litem of Bertha Freel, plaintiff. From the record it appears that on May 26, 1909, a notice of motion for leave to file a supplemental complaint was served upon the attorneys for appellants, the object of the same being to have the title of the action changed to Bertha Freel, as plaintiff, by reason of her having reached the age of majority. There appears to have been no order made changing the title upon such application, although the action was tried upon the supplemental complaint, which is entitled "Bertha Freel, plaintiff." The answer to the original complaint was allowed to stand as the answer to the supplemental complaint, and is entitled, "Frederick Freel, as Guardian ad litem of Bertha Freel, Plaintiff." The instructions to the jury are also so entitled. The verdict and judgment are in the name of Bertha Freel as plaintiff. The notices of appeal and undertakings on appeal are entitled in the same manner in which the action was originally instituted. Respondent contends that by reason of the same not being entitled in the name of Bertha Freel, plaintiff, the appeal is ineffectual, and should be dismissed. We are unable to agree with such contention. The notices of appeal from the orders denying appellant's motion for judgment notwithstanding the verdict, and for a new trial, as well as the notice of appeal from the judgment, describe particularly from what the appeal is taken. They were served upon one of the attorneys for respondent, who instituted the action originally, and who has been connected with the same ever since, and he admitted service on each of said documents as the attorney for plaintiff. This is equally true as to the undertakings and the notice of intention to move for judgment notwithstanding the verdict, or for a new trial. The same attorneys on each side have appeared in the case since its inception.
The authorities cited by respondent are not in point. In Dorsey v. Raleigh & G. R. Co. 91 N.C. 201, the undertaking on appeal given as security for costs was made payable to the state, instead of to respondent, and the court says: "Had no person been named in the undertaking to whom it was payable, and the instrument been without seal, it would have been sufficient under the ruling in the case of the Clerk's Office v. Huffsteller, 67 N.C. 449,--a conclusion arrived at not without much hesitancy, as shown in the opinion of the court." In Herrlich v. McDonald, 72 Cal. 579, 14 P. 357, the court says: There appears to have been no objection made to the party plaintiff at the hearing of the motion for judgment non obstante veredicto or for a new trial, and the case appears to have proceeded until it reached this court, in the name of Frederick Freel as guardian a portion of the time, and in the name of Bertha Freel, plaintiff, the balance of the time. The action, while entitled in the name of Frederick Freel as guardian of Bertha Freel, was in substance the action of Bertha Freel, and the fact that the verdict and judgment were entitled in her name alone as plaintiff, without any order apparently having been made for such change, would not, in our opinion, be grounds for dismissing the appeals in said action, because the same are entitled as the action was originally commenced, and especially so in view of the fact that the orders and judgment are particularly described. Finding no merit in respondent's motion to dismiss the appeals, we will pass to the merits of the case.
The appellants (defendants in the lower court) are husband and wife, and the respondent is a sister of appellant Anna Pietzsch. Respondent claims that, when she was about twelve years old, appellant Fred Pietzsch took improper liberties with her, and had sexual intercourse with her on numerous occasions; that nothing was said about the matter until she was sixteen years old, and had been delivered of a bastard child begotten by her present husband, Freel; that while confined to her bed by reason of such childbirth she informed her mother of what had taken place between Pietzsch and herself, which information was...
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