Northwestern Port Huron Co. v. Zickrick

• Decision Date: 07 March 1908
• Citation: 115 N.W. 525,22 S.D. 89
• Parties: NORTHWESTERN PORT HURON CO. v. ZICKRICK.
• Court: South Dakota Supreme Court

115 N.W. 525

22 S.D. 89

NORTHWESTERN PORT HURON CO. v. ZICKRICK.

Supreme Court of South Dakota

March 7, 1908

Appeal from Circuit Court, Miner County

Action by the Northwestern Port Huron Company against H. W Zickrick. From an order granting defendant a new trial plaintiff appeals. Reversed.

W. E Dodge and Winsor & McNaughton, for appellant.

A. E Chamberlain and C. C. Caldwell, for respondent.

CORSON J.

This is an appeal by the plaintiff from an order granting the defendant a new trial by the circuit court of the Ninth judicial circuit. It is disclosed by the record that an action was commenced by the plaintiff to recover from the defendant certain moneys alleged to be due it from him; that the defendant answered, and that a trial was had of the action before the Hon. Loring E. Gaffy, judge of the Sixth judicial circuit, who was called in to try the case by the Hon. Charles S. Whiting, judge of the circuit court for the Ninth judicial circuit, in May, 1906; that upon the trial a verdict was directed and judgment duly entered thereon in favor of the plaintiff; that the time for serving notice of intention to move for a new trial and settlement of the bill of exceptions or statement of the case was extended from time to time until the 14th day of September, 1906; that a settlement of the case was prepared by the defendant's counsel, served upon the counsel for plaintiff, to which amendments were prepared and served by plaintiff's counsel; that on the 15th day of August, 1906, a stipulation was entered into between the attorneys for the respective parties, in which it was stipulated "that the amendments to the defendant's proposed statement to the case as proposed by the plaintiff be inserted in the statement of the case originally proposed, *** and that the said proposed amendments be considered as so inserted; that upon these conditions the judge be authorized to settle the proposed statement of the case, including the proposed amendments." It is further disclosed by the record that on the 27th day of August the statement of the case was settled by the Hon. C. S. Whiting, judge of the Ninth judicial circuit, and that on September 24th the case came on before the court, Judge Whiting presiding, upon the motion for new trial; that the court proceeded on such hearing to briefly review the decision of Judge Gaffy, and held that on the trial the trial judge had committed error in refusing to admit certain testimony offered by the defendant, and concluded that the defendant should have been allowed to give such evidence, and thereupon granted a new trial. The plaintiff assigns as error (1) that the Hon. C. S. Whiting, judge of the Ninth judicial circuit, erred in assuming jurisdiction to settle and sign the statement of the case; (2) that the judge of the Ninth judicial circuit erred in assuming jurisdiction to hear and determine the motion for a new trial; (3) that the court of the Ninth judicial circuit erred in granting a new trial. The only questions presented for our consideration are as to whether Judge Whiting was authorized to settle the statement, and was authorized upon the statement so settled by him to grant a new trial.

It will be observed that the action was tried by Judge Gaffy, the judge of the Sixth judicial circuit; that the statement of the case was settled by the judge of the Ninth judicial circuit, and the motion for a new trial was granted by the circuit court of the Ninth judicial circuit, and that it was granted for alleged errors of the trial court in refusing to admit evidence, which fact could only be shown by a bill of exceptions or a statement of the case. But so far as the record disclosed, it does not appear that Judge Gaffy was absent from the state or that he refused to settle the bill of exceptions. It is true that Judge Gaffy's term of office expired about the 1st of July, 1906, of which fact this court will take judicial notice. In proceedings for a new trial it is provided, among other things, by subdivision 3 of section 303 of the Revised Code of Civil Procedure, that "if the amendments be adopted the statement shall be amended accordingly and then presented to the judge who tried or heard the case for settlement; or be delivered to the clerk of the court for the judge." And by section 299 of the Revised Code of Civil Procedure it is provided: "A judge may settle and sign a bill of exceptions after, as well as before, he ceases to be such judge. If such judge, before the bill of exceptions is settled, dies, is removed from office, becomes disqualified, is absent from the state or refuses to settle the bill of exceptions, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the Supreme Court may, by its order or rules direct. Judges of the circuit court and the Supreme Court shall respectively possess the same power in settling and certifying statements as is by this section conferred upon them in settling and certifying bills of exceptions." It will be observed that by the latter section the judge who tried the case may...