Gohl v. Bechtold

• Decision Date: 25 June 1917
• Citation: 37 N.D. 141,163 N.W. 725
• Parties: GOHL v. BECHTOLD et al.
• Court: North Dakota Supreme Court

37 N.D. 141

163 N.W. 725

GOHL

v.BECHTOLD et al.

Supreme Court of North Dakota.

March 15, 1917.

On Petition for Rehearing, June 25, 1917.

Syllabus by the Court.

Under section 7966, Comp. Laws 1913, an action is terminated when the time for an appeal from the judgment has expired, and the trial court has no authority thereafter to entertain a motion for a new trial, over the objection of the adverse party, unless the final character of the judgment has been suspended by proceedings commenced prior to the time for appeal expired.

When a motion for a new trial is noticed to be heard after the expiration of the time in which an appeal may be taken, the final character of the judgment is not suspended so as to authorize the court to entertain the motion by the mere fact that the notice of motion was served prior to the time for appeal expired.

Appeal from District Court, Ward County; Leighton, Judge.

Action by Gus Gohl against Louis Bechtold and others. Verdict for plaintiff, and from an order granting defendants' motion for a new trial, he appeals. Reversed.E. R. Sinkler and M. O. Eide, both of Minot, for appellant. J. E. Burke and Francis Murphy, both of Minot, and E. T. Burke, of Bismarck, for respondents.

CHRISTIANSON, J.

[1] This is an appeal from an order of the district court of Ward county granting defendants' motion for a new trial. The action was tried to a jury, which returned a verdict in plaintiff's favor. On December 11, 1915, judgment was entered pursuant to the verdict, and notice of entry of the judgment was duly served upon the defendants' attorneys on that same day. From time to time orders were made extending the time within which to settle the statement of case and move for a new trial. The last order of extension, which was made on April 18, 1916, extended the time in which to settle the statement and move for a new trial to the 18th day of May, 1916. No further or additional extension of time was either applied for or granted. On June 9, 1916, the defendants served a notice of motion for a new trial, noticed to be heard on July 1, 1916. When such motion came on to be heard, plaintiff appeared specially and filed written objections to the hearing thereof on the ground that more than six months had elapsed since the notice of entry of judgment had been served, and that, as no appeal from the judgment had been taken, the action was no longer pending. The trial court overruled the objections and entered an order granting a new trial, unless the plaintiff agreed to a certain reduction of the verdict. Plaintiff appeals from this order.

The first reason assigned for a reversal is that the motion for a new trial was noticed to be heard and heard over plaintiff's objection more than six months after notice of entry judgment had been served. Questions somewhat analogous to the one now under consideration have been considered by this court in several recent cases. See Grove v. Morris, 31 N. D. 8, 151 N. W. 779;Higgins v. Rued, 30 N. D. 551, 153 N. W. 389;Garbush v. Firey, 33 N. D. 154, 156 N. W. 537;Skaar v. Eppeland, 159 N. W. 707.

In the first three cases cited, this court held that, when a notice of motion for a new trial is served more than six months after the date of notice of entry of judgment-i. e., after the time for appeal from the judgment has passed-the district court is without authority to entertain such motion over the objection of the adverse party. In the last case cited (Skaar v. Eppeland, supra) this court held that, where a motion for a new trial is duly noticed to be heard at a date prior to the expiration of time for appeal from the judgment, but continued by consent of the parties, and finally submitted and determined after the time for appeal from the judgment has expired, the final character of the judgment is suspended by the pending proceedings, and the court has jurisdiction to determine the motion for a new trial, even though the time for appeal from the judgment has expired.

[2] Defendants' counsel contends that the service of notice of motion within the six-month period suspended the final character of the judgment, and brings the case within the rule laid down in Skaar v. Eppeland, supra. We are wholly satisfied with the rule announced in Skaar v. Eppeland, but it has no application in this case, as an examination of that decision will show. The following language used in Skaar v. Eppeland is peculiarly significant:

“Where a motion for a new trial is duly noticed to be heard within the six-month period, and final hearing thereon postponed by consent of the parties, or the delay of the court in deciding the motion, the final character of the judgment is suspended by the proceedings so pending.”

In the case at bar the motion for a new trial was not noticed to be heard within the six-month period. The mere service of notice of motion within that time does not suspend the final character of the judgment.

Defendants' counsel also contend that under the provisions of section 7666, Compiled Laws of 1913 (which is a literal re-enactment of section 7068, R. C. 1905), the trial court is vested with power to extend the time in which to move for a new trial for such length of time as in its discretion may be deemed necessary, or to fix another time in which to move for a new trial even after the six-month period has expired. If defendants' counsel are correct in the interpretation to be given to this section of our statute, a judgment would never become final, and a trial judge might permit a motion for a new trial to be made at any time. So far as we know, such unlimited power has never been granted to any court. Under the common law a court retained control over its judgments during the term at which they were rendered only. See Skaar v. Eppeland, supra. We do not believe that the Legislature intended to grant such unlimited power to the trial courts. As we said in Garbush v. Firey, supra:

“There must be some end to litigation. Public policy demands that there be some point of time when a valid judgment, regularly entered, becomes final and unassailable. The Legislature recoginzed this fact, and its intent as declared by section 7966, Compiled Laws, is that a judgment shall become final and conclusive when the time for appeal has expired, and that no proceedings shall thereafter be instituted, over the objections of the adverse party, for a reversal of such judgment.”

The statutory provisions relative to motions for a new trial must be given a reasonable interpretation and construed in harmony with section 7966, Compiled Laws of 1913, which provides:

“An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.”

In our opinion, the trial court had no authority to...