Heald v. Strong

• Decision Date: 04 October 1912
• Docket Number: 81912
• Citation: 138 N.W. 1114,24 N.D. 120
• Parties: HEALD et al. v. STRONG
• Court: North Dakota Supreme Court

138 N.W. 1114

24 N.D. 120

HEALD et al. v. STRONG

No. 81912

Supreme Court of North Dakota

October 4, 1912

On rehearing December 5, 1912.

Appeal by plaintiffs from a judgment of the District Court for Stuttsman County, E. T. Burke, J., in defendant's favor in an action on a promissory note.

Affirmed.

T. F McCue, for appellants.

Knauf & Knauf, for respondent.

FISK J. BURKE, J., did not participate.

OPINION

FISK, J.

Defendant had judgment in the court below, and plaintiffs have appealed, both from such judgment and from an order denying their motion for a new trial. On motion of respondent the appeal from the order was dismissed upon the ground that the same was not taken within sixty days after the making and service of such order. Such order was made April 7, 1911, and a copy thereof served upon appellants' attorney on April 8th, and the appeal from such order is dated June 13th, and was served on June 15, 1911. The statute (§ 7204, Rev. Codes 1905) limits the time for taking an appeal from an order to sixty days from the time written notice of such order shall have been given to the party appealing. The appeal from such order was therefore ineffectual.

At the outset we are confronted with a practice questioned. At the date on which this cause was set for argument respondent's counsel, on due notice theretofore given, made a motion in this court for an order striking the settled statement of the case from the record on the following ground:

"1. That the same was not settled within the time allowed by law.

2. That no just cause of action or reason existed for the extensions of time within which to prepare or settle the statement of the case.

3. That the appellants wilfully neglected to prepare the proposed statement of the case, or to settle the statement of the case within the time allowed by law.

4. That the extensions of time with in which to prepare or settle the statement of the case were improperly allowed, and that the extensions so granted were erroneous, because from the record it appears affirmatively that the failure to prepare or serve the statement of the case or have the same settled earlier was due to the wilful neglect of the said appellants."

The record discloses that the case was tried and judgment rendered in the month of June, 1910. The statement of the case was not settled until March 6, 1911. On August 31, 1910, appellants' counsel applied for, and received from the trial judge, an extension of sixty days from and after such date in which to settle a statement of the case. The showing offered as a basis for such order seems to have been sufficient and its sufficiency is not challenged.

Again, on October 25th, upon a similar showing, appellants' counsel applied for and received a further extension of such time of sixty days from and after such date.

Again, on December 5th, plaintiff presented an affidavit to the trial judge stating that he had just received an official transcript of the testimony from the court reporter, and also stating that the same is a large one and contains many exhibits, and that it will require a great length of time in which to prepare a proper statement of the case, whereupon an order was made extending the time for the period of ninety days from and after December 25th. Such order was filed on January 10, 1911, in the clerk's office.

Again, on the 24th day of February, 1911, another similar application was made for an extension of such time up to and including March 8, 1911, which was granted by the Honorable E. T. Burke, the trial judge, but who, in the month of January preceding, ceased to be the presiding judge in said judicial district and qualified as judge of this court. As a basis for such order appellants' attorney presented an affidavit stating, in substance, that immediately upon ascertaining the result of the verdict in said cause, he ordered a transcript of the evidence for the purpose of settling a statement of the case and of moving for a new trial; that on or about the 1st day of January, 1911, he received such transcript, which was the earliest date according to his best information and belief at which he could procure the same; that immediately thereafter he commenced the preparation of such statement, but that during a portion of such time his stenographer was called away on account of sickness, and that during a considerable portion of the time after the commencement of such work his family were seriously ill, which rendered it impossible for him to give his attention to such work, but that he had proceeded with due despatch and as rapidly as possible, completing the proposed statement on February 5, 1911, on which date he served the same upon respondent's counsel, the latter accepting service thereof on February 6th. Thereafter, and on February 18, 1911, respondent's counsel served many amendments to such proposed statement, which required two days' time in which to examine and compare the original transcript therewith. He also stated that ten days' additional time was requisite in which to serve notice of an application to have such proposed statement settled. Thereupon an order was made by the said trial judge extending the time to March 8, 1911, in which to have such statement of the case settled.

Again, on March 8th, two days after such statement was settled, an application was made to the Honorable Charles F. Templeton, judge of the first judicial district, for an extension of such time to and including March 25th thereafter, which application was granted upon a showing substantially the same as that made to the Honorable E. T. Burke at the time the last extension was granted, and also setting forth the fact that at the time Judge Burke settled such statement on March 6th, objection was made upon the ground that no jurisdiction was vested in Judge Burke to grant such extension of time for the reason that he had at that time ceased to be the judge of the fifth judicial district, wherein such cause was tried, and a proper showing was also made that his successor, Judge Coffey, as judge of the fifth judicial district, was absent from the state.

At the time of the application for the settlement of the statement of the case, the following objection was made and overruled and an exception allowed, which objection was as follows:

"The defendant objects to the settlement of the statement of the case in the above entitled action, (1) because no proper extension of time has been granted by the judge of said court extending the time to or beyond March 6th, 1911, within which to prepare or settle such statement of the case; (2) no good cause in the interest or furtherance of justice has been shown under or by virtue of which the plaintiffs are entitled to the settlement of the statement of the case at this time, and no cause exists therefor; (3) that said statement of the case could readily have been settled long prior to the 1st of January, 1911, by the use of reasonable diligence. These objections are based on the records and files and the annexed affidavits.

"Wherefore the defendant prays that the motion of plaintiffs to settle the statement of the case be herein dismissed.

"Dated March 6th, 1911."

In support of such objections the following affidavits were presented by respondent's counsel:

"John C. Lowe, being first duly sworn, deposes and says that he was, during all the year 1910, the official stenographer of the fifth judicial district, and as such stenographer caused the taking of the testimony of the witnesses in the above entitled matter, by Miss Getrude McConnell, affiant's assistant. That Hon. T. F. McCue was one of plaintiffs' attorneys in said action. That said McCue told affiant, soon after the trial of said action, that he would want a transcript of the testimony in said action, and asked what the same would cost; that affiant caused said McCue to be immediately notified of the cost thereof. Some weeks later affiant met said McCue and he (McCue) informed affiant that he had forgotten the amount, and that if affiant would again notify him thereof he would send a check therefor. That affiant immediately notified him again of the amount, but did not hear from said McCue again relative thereto. That said McCue was informed by affiant, and well knew that affiant required payment for transcripts to be made in advance, as provided by statute. That said McCue did not furnish the payment, but on November 5th we received a letter from A. W Heald in which he stated that he had received a letter from Mr. McCue asking that $ 150 be sent to him to pay for this transcript, and Mr. Heald also said at that time (November 5th, 1910): 'I wish you to draw on us for the amount of this, and we will pay the draft.' On receipt of the letter, or soon thereafter, Miss McConnell commenced the transcript for the first time. On November 29th, 1910, we received another communication from Heald saying that McCue was no longer retained by them. We did not feel at liberty to write this transcript without having our fees in advance.

"That the only reason why said transcript was not prepared and sent plaintiffs or their attorney sooner was the failure of the plaintiffs to forward the money therefor in accordance with my rules, and § 484, Rev. Codes 1905.

"On November 5th, 1910, we wrote the plaintiffs the following letter:

"Replying to your letter of November 5th, will state that we require in all cases a deposit of the estimated cost before starting to write a transcript. Therefore, I have not started on the case of Heald & Kleinman v. Strong, but I think I can furnish you the transcript about the second week in December. As per your request, I am drawing on you to-day for the estimated cost of $ 150.

"John C. Lowe.

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