Heald v. Strong

• Citation: 24 N.D. 120,138 N.W. 1114
• Parties: HEALD et al. v. STRONG.
• Decision Date: 05 December 1912
• Court: United States State Supreme Court of North Dakota

24 N.D. 120

138 N.W. 1114

HEALD et al.

v.STRONG.

Supreme Court of North Dakota.

Oct. 4, 1912.

On Petition for Rehearing, Dec. 5, 1912.

Syllabus by the Court.

Trial courts possess a broad discretion in the matter of granting or refusing extensions of time for the purpose of enabling counsel to prepare and cause to be settled a statement of the case, and the exercise of such discretion will seldom be interfered with by this court, and never, except in cases of a manifest abuse of such discretion. It is held, applying the above rule, that respondent's motion to strike the statement of the case from the record, based upon the alleged insufficiency of the showings made for the various extensions of time in which to have such statement settled, should be denied; it not appearing that in granting such extensions there was a clear abuse of discretion.

Where a motion for a new trial based upon alleged insufficiency of the evidence is made and denied after judgment, and no appeal from the order is taken, this court, following the rule in Hedderich v. Hedderich, 18 N. D. 488, 123 N. W. 276, will not, on an appeal from the judgment, consider assignments based solely upon alleged insufficiency of the evidence.

Certain rulings in the admission and exclusion of testimony examined, and held proper, or at least nonprejudicial.

On Petition for Rehearing.

On an appeal from a judgment alone, the question of the sufficiency of the evidence is not properly before the court for decision, although attempted to be raised by an assignment of error, where the sufficiency of such evidence was in no manner challenged at the trial, but only by a motion for a new trial made long after the entry of such judgment.

Section 101 of the North Dakota Constitution, which provides that “every point fairly arising upon the record of the case shall be considered and decided, and the reasons therefor concisely stated,” etc., construed, and held not to require a literal compliance therewith. A point fairly arising upon the record, within the meaning of said section, must be one, the decision of which is necessary to the final determination of the cause, and which is properly presented with a fullness and distinctness, rendering it possible for the court to comprehend it in all its bearings. Such is the well-recognizedand settled construction of like constitutional provisions.

Additional Syllabus by Editorial Staff.

The admission of testimony is without prejudice, where the same witness had already covered the matter without objection.

Testimony by a mortgagee of a crop that he told the assignee of the mortgage that it was subject to a rental contract between the mortgagor and mortgagee relative to a lien on the crops for advancements did not tend to vary the terms of the written contract.

Appeal from District Court, Stutsman County; E. T. Burke, Judge.

Action by A. W. Heald and another against J. E. Strong. From a judgment for defendant, plaintiffs appeal. Affirmed.

T. F. McCue, of Carrington, for appellants. Knauf & Knauf, of Jamestown, for respondent.

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 60 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 (section 7204, R. C. 1905) limits the time for taking an appeal from an order to 60 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.

[1] At the outset we are confronted with a practice question. 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 willfully 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 within 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 willful 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 60 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 60 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 90 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 Hon. 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 dispatch 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 February6th. 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 Hon. 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 Hon. 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 6, 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 first 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 6, 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...