Higgins v. Rued

• Citation: 153 N.W. 389,30 N.D. 551
• Parties: HIGGINS v. RUED.
• Decision Date: 26 May 1915
• Court: United States State Supreme Court of North Dakota

30 N.D. 551

153 N.W. 389

HIGGINS

v.RUED.

Supreme Court of North Dakota.

May 26, 1915.

Syllabus by the Court.

The causes for which a new trial may be granted are specified in section 7660, Compiled Laws 1913; and these causes are exclusive.

The failure or inability of a court reporter to furnish the defeated party with a transcript of the evidence is no ground for a new trial.

Comp. Laws 1913, § 7966, provides that an action is deemed pending from the time of its commencement until its final determination upon appeal, or the time for appeal has passed, unless the judgment is satisfied. And, following Grove v. Morris, 151 N. W. 779, it is held that, when the time for an appeal has expired, the action is terminated, and the trial court has no jurisdiction to hear a motion for a new trial.

Appeal from District Court, Stutsman County; Coffey, Judge.

Action by Mike Higgins against O. J. Rued. From a judgment for plaintiff, defendant appeals. Appeal dismissed.Knauf & Knauf, of Jamestown, for appellant.

Buck & Jorgenson, of Jamestown, for respondent.

CHRISTIANSON, J.

This action was tried in the district court of Stutsman county, and resulted in a verdict in favor of the plaintiff. Judgment was entered pursuant to the verdict on June 26, 1914, and notice of entry of such judgment was served upon the attorneys for the defendant on July 7, 1914. No appeal was taken therefrom, but on January 29, 1915, the defendant's attorneys served upon the attorneys for the plaintiff a notice of motion for a new trial. The motion came on for hearing, pursuant to such notice on February 10, 1915; and at that time the plaintiff's attorneys filed written objections to the consideration thereof on the ground that more than six months had expired from the entry of judgment and the service of notice of such entry upon the defendant's attorneys, and that the trial court was without jurisdiction to entertain the same. The trial court made no specific ruling on such objections, but made an order on February 11, 1915, denying the motion for new trial; and the objections are referred to in such order as being among the papers on which it was based. The plaintiff perfected an appeal from such order on March 3, 1915.

The defendant has moved for a dismissal of the appeal on the ground that the defendant failed to move for a new trial, or take an appeal, until more than six months had elapsed from the date of the entry of judgment, and the service of notice entry thereof upon the attorneys for the defendant. No other question has been raised by either party, but both seem agreed that the motion to dismiss properly presents the only proposition on which a decision of this court is required.

[1][2] It is undisputed that the defendant has never appealed from the judgment, and that the motion for a new trial was noticed to be heard more than six months after service of notice of entry of the judgment upon defendant's attorneys. Appellant's counsel contends that the failure to move for a new trial before this time was due to his inability to obtain from the court reporter a transcript of the proceedings had at the trial, and that such inability is assigned as one of the grounds for a new trial. He therefore contends that this of itself furnished a sufficient reason for granting defendant's motion for a new trial, as he was prevented from moving within the statutory period. The causes which will justify a district court in granting a new trial are enumerated in section 7660 of the Compiled Laws, and are as follows:

“* * * 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury. * * *

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial.

5. Excessive damages appearing to have been given under the influence of passion or prejudice.

6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.

7. Error in law occurring at the trial and excepted to by the party making the application.”

The motion for a new trial made by the defendant in this case was based upon the grounds specified in paragraphs 1, 3, 5, and 6 of the section of the statute quoted above, and the additional ground of the failure and inability of the court reporter to furnish a transcript of the proceedings had at the trial to the attorneys for the defendant, prior to January 7, 1915. While there are holdings to the contrary, the weight of authority sustains the view that the statutory enumeration of the grounds for new trials is exclusive; i. e., that where the grounds for a new trial are specified by statute, such statutory enumeration is exclusive, and a new trial can be granted only for the causes prescribed by the statute. St. Louis, I. M. & S. Ry. Co. v. Lewis, 39 Okl. 677, 136 Pac....