Johnson v. N. Pac. R. Co.

• Decision Date: 13 January 1891
• Citation: 1 N.D. 354,48 N.W. 227
• Parties: Johnson v. Northern Pac. R. Co.
• Court: North Dakota Supreme Court

1 N.D. 354

48 N.W. 227

Johnson

v.Northern Pac. R. Co.

Supreme Court of North Dakota.

Nov. 29, 1890.

Rehearing denied, January 13, 1891.

Syllabus by the Court.

1. Where the district court by ex parte orders, which were duly served on respondent's counsel, enlarged the time for settling a bill of exceptions, no reason being brought upon the record for granting such orders, and counsel for respondent appearing, and objecting to the settlement, held, such orders were such as the court had authority to make ex parte, and were therefore prima facie valid. Nothing to the contrary being shown, this court will assume that such orders were based upon a proper showing of cause.

2. Where, after time granted for settling a bill had expired, the district court, without making an order extending time, and, against objection, settled and allowed the bill, held not error. Such order of settlement operated to extend the time until the date of the actual settlement. It is within the power of the district court, under the Code, either to enlarge time, or to allow an act to be done after the time limited by the Code. Comp. Laws, §§ 4939, 5093. Under existing statutes, settling bills of exception and statements, and giving notice of intention to move for a new trial, are matters not of a jurisdictional nature. Until the time for appeal has expired, all of the various steps leading up to and including a motion for a new trial may, with respect to time, after statutory time has elapsed, be taken at any time allowed by the sound judicial discretion of the trial court. This court will presume that such discretion is properly exercised in all cases until the contrary appears.

3. In an action for damages caused by a prairie fire alleged to have been started by defendant's negligence, and where the complaint charges negligence both as to the machinery and appliances in use upon the train which threw out the fire, and as to the management of such machinery and appliances, held, the primary fact that defendant's train threw out the fire in question being shown, such fact of itself will operate to make out a prima facie case of negligence. Such fact creates a disputable presumption of defendant's negligence.

4. Held, further, that the prima facie case of negligence cannot be rebutted by the defendant by showing merely that the machinery and appliances were of a proper character, and were at the time in good condition, without showing the further fact that the same were handled with due care at the time the fire was thrown out.

5. The trial court charged the jury as follows: “The care must be proportionate to the danger. A higher degree of care is required when the wind is high than when it is calm, and where combustible matter is very dry than when it is wet.” Held, that under the evidence said instruction was erroneous.

6. Held, further, that such error does not constitute reversible error, for the reason that the plaintiff conclusively established his right to recover on grounds wholly different from and independent of the subject-matter of the erroneous instruction. Such instruction did not materially affect the substantial rights of the defendant, and hence it is not prejudicial error.

7. In an action for damages to property caused by negligence, the measure of damages is controlled by section 4578, Comp. Laws, which reads as follows: “In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, and malice, interest may be granted in the discretion of the jury.” Under this section, the following charge held to be prejudicial error: “If you find from the evidence that the plaintiff's property was destroyed by or through negligence of the defendant, then you must assess the damages of the plaintiff in such a sum as he has proven to you he has sustained, with interest at seven per cent. per annum from the date of loss to plaintiff.” The instruction directly violates the statute, in this: The discretion vested by the statute in the jury to either grant or withhold interest is taken away from the jury, and exercised by the trial court. For this error a new trial will be granted, unless plaintiff consents to a modification of the judgment by deducting interest upon the value of the property destroyed; such value not being contradicted by testimony.

Appeal from district court Stutsman county; Roderick Rose, Judge.John S. Watson, for appellant. S. L. Glaspell, for respondent.

Wallin, J.

This is an action to recover damages for injuries to property caused by a prairie fire which plaintiff alleges resulted from the defendant's negligence. A verdict and judgment were rendered for plaintiff on December 13, 1889, and by three separate orders the time for preparing and signing a bill of exceptions, and serving a notice of intention to move for a new trial, was extended to February 13, March 1, and March 15, 1890, respectively. These orders were duly served on plaintiff's counsel, but were made ex parte, and no cause is spread upon the record for making the same. The notice of intention and the proposed bill were served within the last extension of time, i. e., upon March 14, 1890; but the bill was not settled by the trial court until the period last granted for that purpose had elapsed, and not until April 15, 1890. Plaintiff's counsel appeared, and objected to the settlement of the bill, and his objections were entered upon the record as follows: “The plaintiff objects to the allowance or settlement of this bill of exceptions for the reason that the same was not presented to the court for settlement within the time limited by law, and for the further reason that the orders herein made extending the time for settlement of the bill of exceptions were made ex parte, without notice to plaintiff or his attorney, and without his consent; which objection is allowed, and made part of the record in this case. Roderick Rose, Judge. Dated April 15, 1890.” A preliminary motion was made in this court to purge the record by striking out the bill of exceptions for the reasons above stated. In support of the motion, respondent's counsel claims in his brief that “the paper which purports to be a bill of exceptions was settled and signed * * * at a time when the court had no jurisdiction to settle or sign a bill of exceptions; otherwise, the statute limiting such time is of no effect, and the orders of the court extending such time were unnecessary, and there is no limit of time for an exercise of such discretion.” In support of his contention that the act of allowing and signing a bill is essentially a jurisdictional act, in the sense that the court is without power to do the act after the time limited by statute or extended for that purpose has expired, counsel cites numerous authorities; among others, the following: Hayne, New Trial, p. 773; Higgins v. Mahoney, 50 Cal. 444;Bunnell v. Stockton, (Cal.) 23 Pac. Rep. 302;Buckley v. Althoff, (Cal.) 24 Pac. Rep. 635;Gimbel v. Turner, (Kan.) 14 Pac. Rep. 255;Short v. Railroad Co., (Iowa,) 44 N. W. Rep. 539; also Muller v. Ehlers, 91 U. S. 249; and other authorities. The case last cited follows the rule of the common law which still obtains in the federal courts, and which requires all proceedings in an action of a strictly judicial character, and not ex parte in nature, to be done in term-time. In the case cited the bill was not settled below at the term when the case was disposed of by the trial court, nor was an order entered at such term continuing the matter, and allowing the bill to be settled at a subsequent term. Under the procedure referred to, the court below was without power to allow and sign the bill after adjournment of the term sine die, and hence the supreme court refused to consider it. But this practice has long since been abrogated by statute in Dakota. Section 4828, Comp. Laws, provides, in effect, that the district courts are always open for the purpose of hearing and determining all actions, special proceedings, motions, and applications whatsoever, “except issues of fact in civil and criminal actions.” Under the innovations made by the statute, the district courts of the late territory and of the now state of North Dakota, excluding the cases enumerated in the statute, have authority to discharge all their functions, not only at a general or special term, but equally, and to the same extent, when there is, strictly speaking, no term. We think the case, 91 U. S., supra, not in point. The district court had ample jurisdiction to allow and sign the bill when that act was done.

But the bill in this case was not settled within the time granted by the court; and respondent's counsel contends that the act of signing and allowing it was, for that reason, without authority, and void. The cases cited in support of this proposition from California, Kansas, Iowa, and Nebraska fully sustain the contention so far as those states are concerned; but we find, upon examination, that the statutes of the states above mentioned which regulate the allowance and settlement of bills of exception differ radically from our own laws upon that subject. It will be found that, in all the states referred to, the language of the statute, either in express terms or by obvious implication, inhibits the settlement of bills and statements after the time limited by law or granted for that purpose has expired. On the other hand, our statute, as amended in 1887, (section 5093, Comp. Laws,) expressly permits any of the acts connected with the settlement of bills and statements, and giving notice of intention to move for a new trial, to be done after the time has elapsed, and within the time granted after the original period has expired. This amendment inaugurated a departure from the California practice, which had largely prevailed in the territory prior to the adoption of the amendment. We think it was the purpose of the act of 1887 to place the whole matter of...