John Miller Company, a Corp. v. Minckler
| Decision Date | 29 April 1915 |
| Court | North Dakota Supreme Court |
Rehearing denied May 18, 1915.
An appeal from the District Court of Benson County, Burr Special Judge.
Affirmed.
Cowan & Adamson and H. S. Blood, for appellant.
The showing of defendants on their application for a dismissal was absolute against the plaintiff, and they were entitled to a formal order dismissing the case as a matter of right. Code, 1913, § 7598; Lambert v. Brown, 22 N.D 107, 132 N.W. 781.
R. A. Stuart (Newton, Dullam, & Young of counsel,) for respondent.
The order of the district court refusing to dismiss the action is not appealable. Strecker v. Railson, 19 N.D. 677, 125 N.W. 560.
Notice of appeal may be served by mail. Gooler v. Eidsness, 18 N.D. 338, 121 N.W. 83.
The service was complete from the time the paper was deposited in the postoffice, properly addressed and postpaid. Clyde v. Johnson, 4 N.D. 92, 58 N.W. 512; 4 Wait, Pr. 622; Griffin v. Walworth County, 20 S.D. 142, 104 N.W. 1117.
The order is not a part of the judgment roll. Mooney v. Donovan, 9 N.D. 93, 81 N.W. 50.
On defendant's application for dismissal, they were not, as a matter of right, entitled to an order of dismissal. Lambert v. Brown, 22 N.D. 108, 132 N.W. 781.
On such motion, the court has the right to exercise an impartial, legal discretion; such a discretion as will subserve the ends of justice, and not impede or defeat such purpose. Bailey v. Taaffe, 29 Cal. 423; Ferris v. Wood, 144 Cal. 426, 77 P. 1037; Atty. Gen. v. Nethercote, 11 Sim. 529, 10 L. J. Ch. N. S. 162; Wiltsey v. Wiltsey, 153 Iowa 455, 133 N.W. 665.
Denial of such a motion accords with the principle that delay is excused where it has been caused or acquiesced in by the defendant, and frequent promises made to settle. 2 Wait, Pr. p. 612; Harris v. Ensign, 1 How. Pr. 103; Stinnard v. New York F. Ins. Co., 1 How. Pr. 169; Brown v. Vedder, 2 How. Pr. 71; Merritt v. Seacord, 1 How. Pr. 95; Munn v. Greenwood, 1 How. Pr. 32; Herman v. Pacific Jute Mfg. Co., 131 Cal. 210, 63 P. 344; Hillside Coal & I. Co. v. Heermans, 191 Pa. 116, 43 A. 76; Pickett v. Hastings, 39 Cal. 105; 1 Black, Judgm. 2d ed. § 354; Citizens' Nat. Bank v. Branden, 19 N.D. 489, 27 L.R.A. (N.S.) 858, 126 N.W. 102; Racine-Sattley Mfg. Co. v. Pavlicek, 21 N.D. 229, 130 N.W. 228.
If the defense was a sham, it was undoubtedly interposed to secure delay and to induce a settlement more favorable to defendants. Under such circumstances a defendant will not be allowed to complain of delay. Herman v. Pacific Jute Mfg. Co., 131 Cal. 210, 63 P. 344.
But they did not invoke dismissal while the cause was at repose. Plaintiff was allowed to take steps looking to a trial without objection. This amounted to a waiver. Fernes v. Hutchinson, 1 Russ. & M. 22; Home Ins. Co. v. Howell, 24 N.J.Eq. 238; Troedor v. Hyams, 153 Mass. 536, 27 N.E. 775; Chapman v. Van Alstyne, 6 Wend. 517; People ex rel. Wineman v. Judge of Wayne Circuit, 35 Mich. 498; Miller v. Hemphill, 9 Ark. 488.
The defendants were estopped to claim the right to dismiss, because their conduct was inconsistent with an intent to exercise such right. Bray v. Libby, 71 Me. 276; Ex parte Barclay, 49 Ala. 42; Herman v. Pacific Jute Mfg. Co. supra.
It is the rule that until he has notice of substitution of attorneys, a party to an action is justified in dealing solely with the original attorneys. Hoppin v. First Nat. Bank, 25 Nev. 84, 56 P. 1121; Parker v. Williamsburgh, 13 How. Pr. 250; Robinson v. McClellan, 1 How. Pr. 90; Waterhouse v. Freeman, 13 Wis. 339; Boyd v. Stone, 5 Wis. 240; Comfort v. Stockbridge, 38 Mich. 342; De Vall v. De Vall, 57 Ore. 128, 109 P. 761, 110 P. 705.
In vacating a judgment, it is discretionary with the court as to what reasonable terms may be imposed. Warder v. Patterson, 6 Dakota 83, 50 N.W. 484; Griswold Linseed Oil Co. v. Lee, 1 S.D. 531, 36 Am. St. Rep. 761, 47 N.W. 955; Whereatt v. Ellis, 70 Wis. 207, 5 Am. St. Rep. 164, 35 N.W. 314; Exley v. Berryhill, 36 Minn. 117, 30 N.W. 436.
In opening a default judgment it is proper for the court to require that defendant shall agree to an immediate or speedy trial, without asking for a postponement. Chicago v. English, 198 Ill. 211, 64 N.E. 976; Muller v. Rost, 58 Hun, 604, 11 N.Y.S. 615.
While this action is against several, the real defendant is J. A Minckler. He had given warranty deeds in May, 1905, to his co-defendant, Willard, and procured Delameter and wife to deed property owned by Minckler to Willard. These were deeds of trust for plaintiff's benefits as security for a balance of grain sale transactions. Willard accepted said trust. Personal judgment is asked against Minckler, with foreclosure of said deeds as mortgages. Minckler admits by answer that the deeds were given at a time when an accounting was due between plaintiff and himself for over 200 car loads of grain shipped plaintiff; that the deeds were to secure any balance due plaintiff on an accounting which has never been had; that his tenants were evicted and his rents since 1907 appropriated by plaintiff. He asks for an accounting and a reconveyance of the trust property to him. Summons was served in May, 1908. Plaintiff's attorneys then were Bangs, Cooley, & Hamilton; defendants' attorneys subscribing the answer were Buttz & Sinness. For nearly six years the action remained untried. Reasons for this delay are immaterial except to establish that it was inexcusable. Meanwhile attorney Buttz had become district judge and disqualified to act; Bangs, Cooley, & Hamilton had been succeeded by attorney Stuart as plaintiff's attorney in April, 1914. He immediately served a new notice of trial upon Attorney Sinness. Minckler was temporarily absent from the state. Under date of April 6, 1914, Sinness wrote Minckler in Idaho as follows: Minckler did not receive this letter until May 16th, on his return home. Meanwhile, and on April 15th, Sinness had signed a stipulation with Stuart, referring the case for trial before a referee, and pursuant to the stipulation Judge Buttz had signed the order of reference accordingly. A month later, and on May 15th, a trial was had before the referee with defendant defaulting. Plaintiff's proof was submitted and judgment ordered against Minckler for over $ 28,000, with foreclosure of the deeds as mortgages. Judgment was erroneously entered May 21, 1914, upon the findings and conclusions of the referee and without confirmation or an order for judgment by the court. In his affidavit Minckler states that he had a year previously discharged the firm of Buttz & Sinness and notified them thereof accordingly, but evidently Sinness was somewhat uncertain as to whether he was Minckler's attorney or not. No order of substitution was made or filed. Early in June, 1914, Minckler went to Sinness for information as to what had been done, and immediately employed his present counsel. It seems that the records in the case could not be located for sometime during which they were in the office of the clerk of the district court of Benson county. The records of that office show the entry of a judgment against defendant on May 21, 1914. Before any steps were taken to be relieved from this judgment, plaintiff's attorney, Stuart, in its behalf on July 24, 1914, made an application upon notice for an order setting aside and vacating the judgment erroneously entered May 21, 1914, for an order confirming the report of the referee and for entry of judgment thereon. This motion was referred on July 25th to Judge Burr to be heard at Rugby, August 8, 1914. On August 5, 1914, upon affidavits reciting the irregularities in the proceedings upon which the first judgment was entered upon the referee's report, Minckler by his attorneys, Cowan & Adamson and H. S. Blood, noticed for hearing before the judge of the second judicial district at chambers in Devils Lake a motion to dismiss, for the reason that the plaintiff had not brought the case to trial or taken proceedings for the final determination thereof within five years from the time of the commencement of said action, and in the notice of motion requested its reference to another district judge for determination, the judge of the second district being disqualified. This motion was referred to the judge of the ninth judicial district, and came on for hearing August 8th at the same time as the pending motion for vacation of the judgment and confirmation of the referee's findings. Many affidavits and counter affidavits were served for said hearing by both parties. The two motions were heard together and ruled upon August 8, 1914. The former judgment of May 21st, entered upon the referee's findings, was vacated and the motion to dismiss was denied. Confirmation of the report of the referee was conditionally granted, providing that defendant have "ten days within which they could exercise their right and option given them by this court for a rehearing of said action, either before the same referee or another referee, or before the district court of Benson county at the next term thereof, to put in their defense and evidence in support thereof; said option to be...
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