Hamre v. Senger

• Decision Date: 26 October 1956
• Docket Number: No. 7618,7618
• Citation: 79 N.W.2d 41
• Parties: Einar HAMRE, Plaintiff and Respondent, v. Andy SENGER, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 41

79 N.W.2d 41

Einar HAMRE, Plaintiff and Respondent, v. Andy SENGER, Defendant and Appellant.

No. 7618.

Supreme Court of North Dakota.

Oct. 26, 1956.

Syllabus by the Court.

1. A motion to dismiss an appeal for lack of diligence in the prosecution thereof is addressed to the discretion of the court, and where it appears that the delay in the perfection of the record has not prejudiced the respondent, and it further appears that the appellant has cured any default that may have existed by filing the entire record in the supreme court before any objection was made by the respondent, the motion to dismiss the appeal will be denied.

2. Whether a new trial will be granted rests largely in the sound discretion of the trial court, and an order granting the motion therefor will not be disturbed unless it can be said that there was an abuse of discretion.

3. Accident or surprise as a ground for a new trial denotes an occurrence out of the usual course of events which happens suddenly or unexpectedly without any design on the part of the person affected and which ordinary prudence could not have guarded against.

4. A new trial will ordinarily not be granted for accident or surprise unless it appears probable, except for the surprise or accident, a different verdict would have been rendered or a new trial probably will result in a changed verdict.

5. While the granting of a new trial based on the weight of the evidence involves the discretion of the trial court, this discretion must not be abused and is to be exercised in the interests of justice.

6. Where a verdict is supported by the great preponderance of credible evidence it is an abuse of discretion to grant a new trial.

Degnan, Hager, McElroy & Lamb, Grand Forks, for defendant and appellant.

Day, Stokes, Vaaler & Gillig, Grand Forks, for plaintiff and respondent.

JOHNSON, Justice.

This is an action for damages brought by the plaintiff for the alienation of the affections of his wife, Evelyn Hamre, alleged to have been brought about by the unlawful, wicked and malicious conduct of the defendant. He further alleges that the defendant, contriving to injure the plaintiff and deprive him of the company, society and assistance of his wife and to gain her affections, enticed her to have carnal relations with him and that he persisted in this unlawful and wrongful conduct thereby causing difficulty between the plaintiff and his wife and her refusal to cohabit and live with the plaintiff as his wife.

The defendant denied all the material allegations of the complaint and alleged on information and belief that the estrangement and separation of the plaintiff and his wife was caused by the plaintiff's own conduct toward his wife. The defendant also set up a counterclaim against the plaintiff alleging slander. The counterclaim, however, is not before us as it was dismissed upon motion.

This action was tried before a jury in Nelson County, on the 8th day of March, 1955. The jury brought in a verdict for defendant for dismissal of the action. The plaintiff made a motion for a new trial. This motion was based upon four grounds:

1. Irregularity in the proceedings of adverse party for which the plaintiff was prevented from having a fair trial;

2. Accident or surprise which ordinary prudence could not have guarded against;

3. Insufficiency of the evidence to justify the verdict;

4. Errors of law occurring at the trial and excepted to by the plaintiff.

With the motion for a new trial the plaintiff filed specifications of error covering the four alleged grounds urged as a basis for his motion.

The trial court granted a new trial based upon the second and third ground asserted by the plaintiff. The defendant made a motion for a rehearing to set aside the order granting the new trial and the re-entry of the judgment originally filed. This motion was denied. The defendant thereafter appealed from the order granting the motion for a new trial.

In this court the plaintiff and respondent moves to dismiss the appeal, basing his motion on delay and lack of diligence in the prosecution thereof. The plaintiff contends that he is entitled to a dismissal of the appeal under Sections 28-2734 and 28-2737, NDRC 1943. Both sections were repealed in 1947. However, they are in essence covered by the Rules of Practice of the Supreme Court.

To determine whether there is any basis for the motion to dismiss the appeal, we will examine the judgment roll to ascertain when the various steps in the appeal were taken.

The order setting aside the verdict and granting a new trial is dated August 31, 1955, and was served on the defendant's attorneys September 1, 1955. Order denying the defendant's motion to set aside the order granting the plaintiff a new trial was dated October 13, 1955. It was filed October 14, 1955. Thereafter on December 15, 1955, the defendant filed his notice of appeal and specifications of error together with an appeal bond. On April 10, 1956, the attorneys for the plaintiff signed a waiver of notice in which he waived the notice of motion to apply to the trial court for settlement of the case and certification of the correctness of the transcript, 'the same having been served upon him.' The court signed a certificate settling the statement of the case on April 19, 1956. The transcript was filed with the clerk of the district court of Nelson County on July 2, 1956. The defendant and appellant filed his brief in this court on July 9, 1956. The respondent filed his brief on motion to dismiss as well as on the merits on July 11, 1956. Section 28-2706, NDRC 1943, provides for the transmission of the perfected appeal to this court. It provides in part:

'If the appellant, within thirty days after his appeal is perfected, does not cause a proper record in the case to be transmitted to the supreme court by the clerk of the district court, the respondent may cause such record to be transmitted by the clerk of the district court to the clerk of the supreme court, and in such case the respondent may recover the expense thereof as costs on such appeal in case the judgment or order appealed from is affirmed in whole or in part.'

The notice of appeal, specifications of error and undertaking were filed on December 15, 1955. No transcript had been obtained of the evidence when the motion for a new trial was before the trial court. Whatever delay was involved in the procurement of the transcript was apparently not objectionable to the plaintiff in view of the waiver of notice of motion for settlement of the case and certificate of the correctness of the transcript signed by the plaintiff and respondent's attorneys on April 10, 1956. It is true that the record of the appeal was not filed in this court until the 9th day of July 1956. But it was within the power of the plaintiff and respondent under the authority of the statute to apply to the clerk for transmission of the appeal record to the clerk of this court. This he did not do. While that would not necessarily preclude a dismissal in case of unwarranted delay, it is a fact to be considered when a party moves to dismiss an appeal on account of delay or lack of diligence in the prosecution thereof. It is true that the appellant did not apply for any additional time or an extension to do any of the acts required to complete the perfection of the record of appeal. The appeal was argued during the September term, 1956.

An appeal is deemed perfected, in civil cases, upon both the service and the filing of a notice of appeal with an undertaking on appeal. Rule 21, Rules of Practice, North Dakota Supreme Court, 76 N.D. xxii. While under Rule 31 a failure to comply with any of the requirements of the Supreme Court rules within the time or in the manner provided, shall constitute a ground for dismissal of the appeal, the rule indicates that dismissal is discretionary and the failure to comply with the rules does not deprive the court of jurisdiction. The respondent does not have an absolute right to a dismissal of the appeal. The court may, in its discretion, refuse to dismiss the appeal, where the delay in the filing of the appeal has not resulted in any inconvenience, detriment, or prejudice to the respondent or occasioned any delay in the hearing of the appeal and the submission of the cause. See 4 C.J.S., Appeal and Error, § 1092, pp. 1551, 1552 and 1553. The entire record is before us. It was filed by the appellant and the default in the perfection of the record on appeal has been cured by affirmative action before the respondent made any objection. No argument has been presented to show that such delay as occurred in the perfecting of the record has resulted in any inconvenience, detriment or prejudice to the respondent. The courts favor disposition of cases on the merits. The motion to dismiss the appeal is denied.

We will now consider the appeal on its merits.

The defendant assigns two errors of law as a basis for his contentions:

'1. That the court erred in finding that the verdict was contrary to the weight of the evidence, and that there was surprise evidence which ordinary prudence would not have guarded against, and granting a new trial herein.

'2. That the court manifestly abused its discretion in granting a new trial herein.'

The respondent has abandoned his first and fourth grounds for a new trial as he argues on appeal only the two grounds used by the court as a basis for granting the same, accident or surprise which ordinary prudence could not have guarded against, and the insufficiency of the evidence to justify the verdict. Both of these involve the necessity of setting forth the evidence presented by the parties.

The plaintiff and the defendant were neighbors living on adjoining farms near Petersburg, North Dakota. The farms were about a quarter of a mile apart. The families of the parties became acquainted, visited back and forth, and the defendant on occasion helped the plaintiff with chores. On...