Miller v. Thompson
| Decision Date | 15 June 1915 |
| Citation | 153 N.W. 390,31 N.D. 147 |
| Court | North Dakota Supreme Court |
From the District Court of Ramsey County, Buttz, J.
Appeal dismissed.
Appeal dismissed, without prejudice.
William Anderson, of Devils Lake, for respondents.
Middaugh Cuthbert, Smythe, & Hunt, of Devils Lake, for appellant.
This is the second opinion written in this case on matters of practice. The action was tried and July 7, 1914, judgment was entered against both appellant Thompson and a codefendant the Devils Lake State Bank.
November 30th motion in the alternative was made by both said defendants for a vacation of the judgment or for a new trial. The trial court granted the motion as to the bank, and dismissed the action as to it. But as to defendant Thompson both motions were denied by order of November 30th, directing that as to him "the judgment of July 7, 1914, stand."
On December 2, 1914, the sole remaining defendant and judgment debtor, Thompson, appealed from the judgment entered July 7, 1914, against him. He took no appeal from the order of November 30, denying him a new trial. On February 24, 1915, plaintiff and respondent on the appeal moved this court to dismiss that appeal on grounds which will be found discussed at length in the opinion filed April 24, 1915, in this entitled action, and reported in 30 N.D. 250, 152 N.W. 279.
Pending decision on said motion to dismiss said appeal, and on March 17, 1915, in an attempt to remedy an apparent uncertainty in the order of November 30, the trial court entered a second order of the same legal effect as that of November 30th, reciting that the former order denying a new trial had not been entered or procured by Thompson's consent, and again denying him a new trial.
On May 7, an appeal was duly perfected from the order of March 17. Respondent has moved for a dismissal of this second appeal.
The fourth ground assigned on dismissal is well taken. It is urged that the order of November 30, denying Thompson a new trial, was an appealable order, from which within sixty days he should have appealed, and that by lapse of time without an appeal the order became final and conclusive, and rendered the trial court powerless to later, and after the expiration of the said sixty-day period for the appeal, amend it or make a subsequent order to the same effect from which an appeal might be taken. The attempted order of March 17 was a nullity as made without jurisdiction, and as such could confer no right of appeal therefrom, nor in any way extend the already lapsed period for appeal from the only appealable order, that of November 30. The attempted order made was not a correction of the previous order. At the time when made the trial court was powerless to correct or amend it. The sixty-day limitation period of appeals from an order is analogous to statutory period for appeal from a judgment, and the reasoning in Grove v. Morris, ante, 8, 151 N.W 779, and Higgins v. Rued, 30 N.D. 551, 153 N.W. 389, applies. This is so independent of the fact that the appeal first taken was from the judgment, and not from the order of November 30, denying a new trial. That defendant saw fit not to appeal from said order does not change the situation. For sixty days he had a right of appeal therefrom. In fact, at the time he appealed from the judgment on December 7th, he could have taken a joint appeal from both the judgment and order. Shockman v. Ruthruff, 28 N.D. 597, 149 N.W. 680, and cases there cited, including Kinney v. Brotherhood of American Yeomen, 15 N.D. 21, 106 N.W. 44, overruling earlier cases requiring separate appeals from a judgment and...
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