Millers' & Traders' State Bank v. Nat'l Fire Ins. Co. of Hartford, Conn.

• Decision Date: 15 March 1927
• Docket Number: No. 5280.,5280.
• Citation: 212 N.W. 834,55 N.D. 149
• Court: North Dakota Supreme Court
• Parties: MILLERS' & TRADERS' STATE BANK, OF MINNEAPOLIS, MINN., v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN.

55 N.D. 149

212 N.W. 834

MILLERS' & TRADERS' STATE BANK, OF MINNEAPOLIS, MINN.,

v.NATIONAL FIRE INS. CO. OF HARTFORD, CONN.

No. 5280.

Supreme Court of North Dakota.

Feb. 14, 1927.

Rehearing Denied March 15, 1927.

Syllabus by the Court.

An application for settlement of a statement of the case after the time limited therefor by the statute has expired is addressed to the sound judicial discretion of the trial court, and its ruling will not be disturbed, unless the record presented on appeal shows that the trial court abused its discretion. It is held that in the instant case there was no abuse of discretion.

Appeal from District Court, Ward County; Geo. H. Moellring, Judge.

Action by the Millers' & Traders' State Bank, of Minneapolis, Minn., against the National Fire Insurance Company of Hartford, Conn. Judgment for plaintiff. From an order denying an application to settle a statement of the case after the expiration of the time limited therefor, defendant appeals. Affirmed.Zuger & Tillotson, of Bismarck, (William Furst, of Minneapolis, Minn., of counsel), for appellant.

L. J. Palda, Jr., C. D. Aaker, C. E. Brace, and Robert W. Palda, all of Minot, for respondent.

CHRISTIANSON, J.

This is an appeal from an order of the district court of Ward county denying appellant's motion for settlementof a statement of case after the expiration of the time allowed by law for such settlement. The action is one upon a policy of insurance, and was tried in the district court of Ward county on February 4, 1926, before the Hon. Geo. H. Moellring, one of the judges of the Fifth judicial district, and a jury. There was a verdict in favor of the plaintiff, and, on February 8, 1926, judgment was entered pursuant to the verdict, and notice of entry of such judgment was forthwith served upon defendant's counsel. On February 10, 1926, upon application of defendant's counsel, the trial court entered an order extending the time in which to prepare, serve, and settle a statement of case for a period of 60 days from the date of the entry of judgment. On April 10, 1926, another order was entered extending the time in which to settle the statement of case until June 1, 1926. Both of said orders provided for a stay of execution. No further proceedings were had until August 7, 1926, when the defendant served and filed notice of appeal and undertaking on appeal. Nothing further was done by the defendant or its counsel as regards said appeal, and on September 15, 1926, plaintiff's counsel prepared and served notice of motion for a dismissal of the appeal on the ground, among others, that the same had not been prosecuted with due diligence, and that the rules of this court regarding appeals had been disregarded or violated. Such motion was noticed for hearing, and came on to be heard October 5, 1926. At such hearing both parties appeared by counsel who had represented them upon the trial of the action. Affidavits were submitted on both sides, and, after full hearing and due consideration, this court, on October 26, 1926, entered an order dismissing the appeal. During all of this time no attempt had been made by the appellant to procure a settlement of the statement of case, and it was conceded that, in the absence of a statement of case, a hearing of the appeal would be futile, and must of necessity result in an affirmance of the judgment. On November 5, 1926, appellant appeared, through counsel retained after the entry of the order dismissing the appeal, and asked for an order staying the remittitur until an application could be made to the district court for a settlement of the statement of case, and with the suggestion that, in event the remittitur was stayed, the defendant would forthwith apply to the district court for a settlement of the statement of case; and, if the statement was settled, would then apply to this court for a reinstatement of the appeal. The remittitur was stayed until December 1, 1926, and by subsequent order this period was extended until December 11th. On November 10, 1926, the defendant applied to the district court for an order to show cause why the time for settlement of the statement of case should not be enlarged and the statement settled accordingly. The application was supported by the affidavits of one William Furst (one of the attorneys who represented the defendant at all times during the trial of the cause in the district court) and Mr. Zuger (who had been retained as counsel for the appellant after the appeal had been dismissed). The trial court issued an order to show cause returnable November 19, 1926. On the return day plaintiff's counsel appeared and filed a special appearance, wherein they objected to the jurisdiction of the court on the ground, among others, that, inasmuch as an appeal had been taken to the Supreme Court, and such appeal dismissed, the district court was without jurisdiction to entertain an application for settlement of the statement of case. The plaintiff also filed a return to the order to show cause wherein the facts relating to the entire proceedings had at the trial and subsequent thereto were set forth, and it...