Missouri Slope Land & Investment Company, a Corp. v. Hastead
| Decision Date | 12 May 1914 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Billings County, S. L. Nuchols, Special Judge.
From an order refusing to proceed with the trial, defendant appeals.
Reversed.
Reversed and remanded.
Purcell & Divet, and J. A. Miller, for appellant.
The transfer of a county to a new judicial district does not oust the judge of the old district from jurisdiction to settle a statement of the case or grant a new trial in a case originally tried before him. Bruegger v. Cartier, 20 N.D. 72, 126 N.W. 491; Et vide Darelius v. Davis, 74 Minn. 345, 77 N.W. 214; McCord v. Knowlton, 76 Minn 391, 79 N.W. 397; Rev. Codes 1905, § 6766.
The statement of the case should be settled by the judge before whom the case was tried. Bass v. Swingley, 42 Kan 729, 22 P. 714; State v. McClintock, 37 Kan. 40, 14 P. 511; Manning v. Mathews, 66 Iowa 675, 24 N.W 271.
Three parties are necessary to and interested in the settlement of a bill of exceptions or statement of the case. Northwestern Port Huron Co. v. Zickrick, 22 S.D. 89, 115 N.W. 525; Matthews v. Superior Ct. 68 Cal. 638, 10 P. 128; Staser v. Hogan, 120 Ind. 207, 21 N.E. 916, 22 N.E. 990; Ohms v. State, 49 Wis. 415, 5 N.W. 827, 3 Am. Crim. Rep. 362.
The terms "qualification" and "jurisdiction" are dissimilar. Dupoyster v. Clarke, 121 Ky. 694, 90 S.W. 1; State ex rel. Penfro v. Wear, 129 Mo. 619, 31 S.W. 608; State v. Moberly, 121 Mo. 604, 26 S.W. 364; Nebraska Mfg. Co. v. Maxon, 23 Neb. 224, 36 N.W. 492; State ex rel. Cougill v. Sachs, 3 Wash. 691, 29 P. 446; Fisher v. Puget Sound Brick, Tile & Terra Cotta Co. 34 Wash. 578, 76 P. 107; Frevert v. Swift, 19 Nev. 363, 11 P. 273; Et vide State v. Heiser, 20 N.D. 357, 127 N.W. 72; Gould v. Duluth & D. Elevator Co. 3 N.D. 101, 54 N.W. 316; Getchell v. Great Northern R. Co. 22 N.D. 325, 133 N.W. 912.
If a motion for new trial is made before a new judge, it is his imperative duty to grant it. Bass v. Swingley, 42 Kan. 729, 22 P. 714; Ohms v. State, 49 Wis. 415, 5 N.W. 827, 3 Am. Crim. Rep. 362; United States v. Harding, 1 Wall. Jr. 127, F. Cas. No. 15, 301; People ex rel. Wright v. Superior Ct. Judge, 41 Mich. 726, 49 N.W. 925; Woolfolk v. Tate, 25 Mo. 598.
If a party is unable, through no fault of his own, to furnish a transcript of the evidence, he should be granted a new trial as a matter of right. Holland v. Chicago, B. & Q. R. Co. 52 Neb. 100, 71 N.W. 989; Zweibel v. Caldwell, 72 Neb. 47, 99 N.W. 843, 102 N.W. 84; Curran v. Wilcox, 10 Neb. 449, 6 N.W. 762; Bruegger v. Cartier, 20 N.D. 72, 126 N.W. 491.
If irregularity exists in the order granting a new trial, it renders the order merely voidable, and not void. Throop, Pub. Off. §§ 622 et seq; Williams v. Williams, 6 S.D. 295, 61 N.W. 38; Rev. Codes 1905, §§ 6765 & 6766; Gould v. Duluth & D. Elevator Co. 3 N.D. 96, 54 N.W. 316; Bruegger Case, 20 N.D. 72, 126 N.W. 491; State v. Heiser, 20 N.D. 368, 127 N.W. 72; Riggs v. Owen, 120 Mo. 176, 25 S.W. 356.
The granting of a motion for a new trial without service of notice does not make the order void. Rev. Codes 1905, § 7326.
The motion to vacate the order granting a new trial having been denied, review of the same could only be had by appeal, and not by a renewal of said motion at the new trial. Enderlin State Bank v. Jennings, 4 N.D. 228, 59 N.W. 1058.
Service of a copy of the judgment does not start the running of the statutory year for appeal. First Nat. Bank v. McCarthy, 13 S.D. 356, 83 N.W. 423; Re New York C. & H. R. R. Co. 60 N.Y. 115; Fry v. Bennett, 16 How. Pr. 404; Kelly v. Sheehan, 76 N.Y. 325; Prescott v. Brooks, 11 N.D. 93, 90 N.W. 129; McKenzie v. Bismarck Water Co. 6 N.D. 371, 71 N.W. 608; Richardson v. Rogers, 37 Minn. 461, 35 N.W. 270; Yorks v. Peck, 17 How. Pr. 192.
Where a party undertakes to limit the time for appealing, he must serve such notice as the rules and practice require. He is held to strict practice. Kelly v. Sheehan, 76 N.Y. 325; Good v. Daland, 119 N.Y. 153, 23 N.E. 474; Tronsrud v. Farm Land Finance Co. 20 N.D. 567, 129 N.W. 359.
Courts of general common-law jurisdiction have inherent power to grant new trials. 29 Cyc. 722, 723, note, 21, 727, note, 64; State ex rel. Berndt v. Templeton, 21 N.D. 470, 130 N.W. 1009.
Failure to give notice of intention to move for a new trial does not in anywise go to the question of jurisdiction. 37 Century Dig. col. 1270; 29 Cyc. 921; Flugel v. Henschel, 6 N.D. 205, 69 N.W. 195; Gould v. Duluth & D. Elevator Co. 2 N.D. 216, 50 N.W. 969; McKenzie v. Bismarck Water Co. 6 N.D. 361, 71 N.W. 608.
New trial should always be granted where the right of appeal is destroyed or lost through no fault of moving party. Henrichsen v. Smith, 29 Ore. 475, 42 P. 486, 44 P. 496; Manning v. German Ins. Co. 46 C. C. A. 144, 107 F. 54; Fire Asso. of Philadelphia v. McNerney, Tex. Civ. App. , 54 S.W. 1053; People ex rel. Wright v. Superior Ct. Judge, 41 Mich. 726, 49 N.W. 925; Borrowscale v. Bosworth, 98 Mass. 37; Crittenden v. Schermerhorn, 35 Mich. 370 (Per Cooley, Judge); Greenville v. Old Dominion S. S. Co. 98 N.C. 163, 3 S.E. 505; Owens v. Paxton, 106 N.C. 480, 11 S.E. 375; Nelson v. Marshall, 77 Vt. 44, 58 A. 793; McCotter v. New Shoreham, 21 R. I. 425, 44 A. 473; 29 Cyc. 874 and 875; Bruegger v. Cartier, 20 N.D. 72, 126 N.W. 491; Kitzman v. Minnesota Thresher Mfg. Co. 10 N.D. 26, 84 N.W. 585; Freeman v. Wood, 11 N.D. 1, 88 N.W. 721.
L. A. Simpson and W. L. McBride, for respondent.
In granting new trials in cases that have been tried, submitted, and determined, the statutory method must be pursued. Parrott v. Hot Springs, 9 S.D. 202, 68 N.W. 329; Williams v. Chicago & N.W. R. Co. 11 S.D. 463, 78 N.W. 949.
Notice of intention to move for new trial must be given as by law provided it was not done in this case. Rev. Codes 1905 §§ 7065, 7068, 7086; MacGregor v. Pierce, 17 S.D. 51, 95 N.W. 281; Hayne, New Trials, p. 14.
The actual service of the written notice of the entry of judgment started the running of the statute limiting the time for appeal. Prescott v. Brooks, 11 N.D. 93, 90 N.W. 129.
This is an appeal from an order made by Judge S. L. Nuchols on April 12, 1912, while acting as special judge of the tenth judicial district, declining and refusing defendant's demand for a trial of the action. The order reads as follows:
"It is hereby ordered that the motion of the defendant and his demand for a trial be, and they hereby are, overruled and denied upon the sole and only ground that the action is not pending for trial, but that the issues involved therein have been merged in a final judgment, which judgment remains unvacated and unreversed, and the order of his Honor, Judge Winchester, of date the 14th day of January, 1911, assuming to grant a new trial hereof, is void and of no force and effect."
The facts essential to a complete understanding of the questions for decision are stated in appellant's brief in substance as follows:
The action was brought in 1906, to quiet title to certain land in Billings county. The answer alleges by way of defense a contract of purchase of the land, and a partial payment thereon by note. The reply denies the terms of the contract, and alleges that the defendant had defaulted in the payment of the note. The case came to trial on October 11, 1906, at Dickinson, Stark county. At this time Stark county was in the sixth judicial district, of which Judge Winchester was the regular judge. The trial resulted in findings, conclusions, and order for judgment favorable to the plaintiff. These were signed by Judge Winchester on December 31, 1908, and judgment was entered on February 3, 1909.
By chapter 162, Laws 1907, the tenth judicial district was formed, and Stark county, among others, was transferred to it; and at the fall election of that year Honorable W. C. Crawford was elected the judge of that district.
On March 3, 1909, J. A. Miller, one of the attorneys for the defendant, made an affidavit for extension of time to settle a bill of exceptions and make a motion for new trial. The reason for asking for this stay was that the original papers and transcript of the evidence could not be found. Upon this affidavit an order was made by Judge Crawford on March 3, 1909, as prayed for. Various other stays were granted, and finally, it being shown that the defendant was utterly unable to prepare a statement of the case, although he had made inquiry of the plaintiff's attorneys, Judge Winchester, the clerk of court, and the court stenographer, and had made trips to Medora and various places in Montana, Judge Crawford, on December 5, 1910, made an order that "all further proceedings in the matter be had before the Honorable W. H. Winchester, judge of the sixth judicial district, and the judge before whom this case was originally tried," because as (the order recited), "he (Judge Crawford) was not present at the trial of the action, and knows nothing of the evidence there adduced, he is not in a position to satisfactorily settle the statement of case."
Thereafter and on January 11, 1911, on an ex parte motion and on the affidavit of L. A. Simpson, one of the attorneys for the plaintiff, Judge Crawford revoked the order of December 5, 1910, transferring the case to Judge Winchester, reciting as a ground "that said order inadvertently by the court recited statements not in accordance with the record in said case."
Pursuant to the order of December 5, 1910, an ex parte motion was made in behalf of the defendant to set aside the judgment, and for a new trial, and granted by Judge Winchester under date of January 14, 1911.
Thereupon a motion was made before Judge Winchester by the plaintiff's attorneys,...
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