Lund v. Upham
| Decision Date | 14 February 1908 |
| Citation | 116 N.W. 88,17 N.D. 210 |
| Parties | HENRY LUND v. NATHAN UPHAM |
| Court | North Dakota Supreme Court |
Rehearing denied April 21, 1908.
Appeal from District Court, Walsh county, Fisk, J.
Action by Henry Lund against Nathan Upham. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals. Reversed, and cause remanded.
Reversed, and remanded.
E. R Sinkler, for appellant.
Notice of intention is essential to the grant of a new trial. Gould v. Dakota Elevator Co., 2 N. Dak. 216, 50 N.W 969; First National Bank v. Comfort, 28 N.W. 855, 4 Dak. 167; Moddie v. Brieland, 70 N.W. 637.
Motion for new trial cannot be entertained one year and six months after notice of entry of judgment. Rev. Codes 1905, Sec. 7346; Bright v. Juhl, 93 N.W. 648; Kimball v. Palmerlee, 13 N.W. 129; Deering v. Johnson, 22 N.W. 174; Yerkes v. McHenry, 6 Dak. 5, 50 N.W. 485; Richardson v. Rogers, 35 N.W. 270; Pugh v. Reat, 107 Ill. 400; Ferger v. Wesler, 35 Ind. 53.
Motion for new trial and decision thereon must be made before the expiration of the period for appeal from the judgment. Knox v. Clifford, 41 Wis. 458; Whitney v. Karner, 44 Wis. 563; McKnight v. Livingstone, 1 N.W. 14; Sargent v. Kindred, 5 N.D. 472, 67 N.W. 826; Gaar, Scott & Co. v. Collin, 15 N.D. 622, 110 N.W. 81.
Statement of the case must contain specification of particulars wherein the verdict is not sustained by the evidence. Gagnier v. City of Fargo, 12 N.D. 219, 96 N.W. 841.
Exceptions to attorney's remarks must be taken when they are made, not at close of argument. Western Union Tel. Co. v. Apple, 28 S.W. 1022; 2 Enc. Pl. & Pr. 755.
J. H. Fraine, for respondent.
Court can entertain a motion for new trial eighteen months after notice of entry of judgment. Johnson v. N. P. Ry. Co. 48 N.W. 227; King v. Hanson, 13 N.D. 85; 99 N.W. 1085; Grade v. Collins, 66 N.W. 467.
Objection to non-filing of the statement of the case can not be first raised in the appellate court. Plano Mfg. Co. v. Jones, 79 N.W. 338.
The granting of a new trial for insufficiency of the evidence will not be disturbed, except for abuse of discretion in making it. State v. Howser, 98 N.W. 352; Pengilly v. Machine Co. 11 N.D. 249, 91 N.W. 63; Dinnie v. Johnson, 8 N.D. 153, 77 N.W. 612; Gull River Lumber Co. v. Elevator Co., 6 N.D. 276, 69 N.W. 691.
MORGAN, C. J. SPALDING, J., concurs. FISK, J., did not sit on the argument, nor participate in the decision.
This is an appeal from an order granting a new trial on the defendant's motion. The action was for the recovery of a judgment against the defendant for damages growing out of his refusal to comply with his alleged contract to pay the plaintiff for threshing done by him for one Johnson. The plaintiff recovered a verdict. Defendant moved for a new trial. The granting of the order for a new trial is the only error assigned. Judgment was entered on the verdict on April 1, 1905. Notice of the entry of judgment was served on April 3, 1905. Notice of intention to move for a new trial on statutory grounds was served, and service thereof duly acknowledged on May 25, 1905. The grounds on which a new trial would be asked are specified in this notice as: (1) Errors of law occurring at the trial; (2) insufficiency of the evidence to justify the verdict, and that it is against the law; (3) misconduct of plaintiff's counsel at the trial. The notice contained no specification of the particulars in which the evidence was insufficient to sustain the verdict. This notice further specified that the motion for a new trial would be based upon a statement of the case thereafter to be settled, and upon the files in the action, and upon the minutes of the court at the trial. On said May 25th a proposed statement of the case was served on plaintiff's attorney, and on May 31st, plaintiff's attorney served proposed amendments to said proposed statement, and the same was settled by the trial judge on July 24, 1905, and filed in the clerk's office on February 28, 1907. October 22, 1906, notice was served on the plaintiff that the motion for a new trial would be brought on for argument on November 3, 1906, and the motion was heard and decided on said November 3d.
The appellant claims at the outset, irrespective of any question on the merits of the order, that the trial court had no jurisdiction to grant a new trial, for the reason that the motion therefor was noticed for argument and heard after more than one year after the judgment was entered, and after the time for appeal therefrom had passed. It is unnecessary to determine as a matter of law whether the court had jurisdiction to pass upon the motion for a new trial by reason of the fact that the motion was made and granted after the time for appeal from the judgment had expired. It may be conceded for the purposes of this appeal that the court had jurisdiction so far as that question is concerned. There is, however, a fatal objection to the order on jurisdictional grounds so far as a consideration of the evidence is concerned. The verdict is assailed on the ground of the insufficiency of the evidence to sustain it. Nowhere in the notice of intention to move for a new trial, nor in the motion for a new trial, nor in the specifications of error, are the particulars wherein the evidence is insufficient to sustain the verdict pointed out. The statute regulating proceedings on motions for new trials and appeals makes it the duty of the party applying for a new trial to particularly specify wherein the evidence is insufficient, and prescribes that the specification shall be disregarded unless such insufficiency is particularized. Section 7058, Rev. Codes 1905; Baumer v. French, 8 N.D. 319, 79 N.W. 340; Mooney v. Donovan, 9 N.D. 93, 81 N.W. 50; Chandler v. Kennedy, 8 S.D. 56, 65 N.W. 439; Gagnier v. City of Fargo, 11 N.D. 73, 88 N.W. 1030, 95 Am. St. Rep. 705.
The question of the insufficiency of the evidence to justify the verdict was not properly before the trial court, and under the peremptory language of section 7058 we must disregard that specification
There are 60 specifications of error set forth in the statement of the case. Fifty-five of them relate to the admission of evidence. A great number of these specifications are not even mentioned in the printed briefs; but we have considered them and find no error in such rulings. Those specifications that are mentioned in the brief we have also carefully considered, and we find no prejudicial error in any ruling. One of the questions objected to as immaterial was, "Did you rely on Mr. Upham's statement he would pay you for all the threshing?" The action was brought against the defendant on a promise to pay the plaintiff for threshing done by him for one Johnson. One of the issues was whether the defendant had made such promise. As corroborating Johnson's testimony that such promise was made by the defendant, the fact that no...
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