Gould v. Duluth & Dakota Elevator Co.

• Decision Date: 02 November 1891
• Court: North Dakota Supreme Court
• Parties: Gould v. Duluth & Dakota Elevator Co.

2 N.D. 216

50 N.W. 969

Gould

v.Duluth & Dakota Elevator Co.

Supreme Court of North Dakota.

Nov. 2, 1891.

Syllabus by the Court.

1. A general verdict was returned in plaintiff's favor December 10, 1890. On April 6, 1891, a bill of exceptions was allowed on defendant's application. No notice of intention to move for a new trial was ever served, nor was such service waived. Prior to the allowance of the bill plaintiff had served notice of a motion for judgment on the verdict, which motion, after postponement, came on to be heard on the day the bill was allowed. After hearing counsel on such motion, the court denied the motion for judgment, and its order denying such motion also directed that the verdict be set aside, and granted a new trial. The order is predicated upon error, as shown in the record by the bill of exceptions. No application was ever made for a new trial by either party. Held, that the order vacating the verdict and granting a new trial was without authority of law, and is reversible error.

2. It is not claimed that such order was made or could be made in the case under authority of section 5091, Comp. Laws, allowing such orders to be made by the court upon its own motion. Nor should a new trial be granted without the application of either party, where, as in this case, a long period of time had elapsed after the verdict, and where both parties had initiated proceedings based upon the verdict.

Cross-appeals from district court, Cass county; William B. McConnell, Judge.

Action by Charles H. Gould against the Duluth & Dakota Elevator Company for the conversion of wheat. Verdict for plaintiff. From an order setting aside the verdict and granting a new trial, both parties appeal. Reversed.J. E. Robinson, for plaintiff. A. C. Davis, for defendant.

Wallin, J.

This action is for the conversion of wheat. The complaint sets out two separate causes of action,-one for the conversion of wheat covered by plaintiff's chattel mortgage; the other for the conversion of wheat upon which plaintiff claims a seed lien. On December 10, 1890, a jury trial was had, resulting in a general verdict in plaintiff's favor for the sum of $484. No notice of intention to move for a new trial was ever served, but on defendant's application, and with the consent of plaintiff's counsel, a bill of exceptions was settled and allowed on April 6, 1891. Prior to settling the bill of exceptions plaintiff's counsel had served on counsel for defendant the following notice: “Please take notice that on the pleadings, proceedings, and verdict herein, on the 4th day of April, 1891, at 3 o'clock p. m., at the court-house in Fargo, N. D., the plaintiff will move the court that the second cause of action mentioned in the complaint herein be withdrawn, and dismissed without prejudice, for the reason that the defendant has on record objected to any recovery thereon on the ground that it is not assignable, and on the ground that the evidence failed to show that the seed wheat had been sown on the land described in said lien; and plaintiff will move the court that the verdict stand for the amount due on the mortgage mentioned in the complaint, being $268.00 at the date of said verdict, and that plaintiff have judgment therefor, with costs.” After hearing the motion, the court made the following order: “The motion of plaintiff for judgment on the verdict herein coming on for a hearing as per notice annexed, and plaintiff having moved for judgment for $484.00, or $268.00 as per said written notice, J. E. Robinson appearing for plaintiff and A. C. Davis for defendant, and defendant claiming error in the record as shown by the bill of exceptions this day settled and allowed, and the court being of opinion that there was error, it is by the court ordered that the verdict herein be, and the same is, set aside, and a new trial is hereby granted.” To this order of the district court defendant's counsel then excepted, and on May 30, 1891, defendant perfected an appeal to this court from said order. Subsequently the plaintiff duly appealed to this court from the same order. In this court defendant's appeal was dismissed on defendant's own motion, and counsel for defendant argued in favor of sustaining the order of the trial court granting the new trial. We do not consider it proper upon this appeal to pass upon the merits of any of the errors alleged in the bill of exceptions. The only question which will be...