Pathman v. Williams

• Decision Date: 13 March 1916
• Citation: 157 N.W. 293,33 N.D. 365
• Parties: PATHMAN v. WILLIAMS. SAME v. WILLIAMS et al.
• Court: North Dakota Supreme Court

33 N.D. 365

157 N.W. 293

PATHMAN

v.WILLIAMS.

SAME

v.WILLIAMS et al.

Supreme Court of North Dakota.

March 13, 1916.

Syllabus by the Court.

This opinion decides two above-entitled appeals. After service of notice of trial, the court during a subsequent term, after oral notice given plaintiff's attorney of an intention by defendants to so request, placed these causes upon the calendar for trial. Later, upon peremptory call, judgment was awarded against plaintiff for nonprosecution in his absence. No note of issue was ever filed. Held, the court had jurisdiction under section 7610, C. L. 1913, to so order; notice of trial having been seasonably served. Note of issue is required for convenience, and is not a jurisdictional prerequisite to trial or summary disposition of the action.

Appeal from District Court, Stark County; Crawford, Judge.

Two actions by Henry Pathman-one against Julius Williams; the other against Julius Williams and another. From denial of application to vacate judgments, plaintiff appeals. Affirmed.Thos. H. Pugh, of Dickinson, and B. M. Rigler, of Richardton, for appellant. T. F. Murtha, of Dickinson, for respondents.

GOSS, J.

This is an appeal from an order denying an application to vacate a judgment. The uncontroverted facts are that after issue was joined the defendant served notice of trial for the May, 1913, term of district court, but did not file the same or a note of issue, because plaintiff had neglected to pay the clerk's fees for filing the cause. Another case had previously been begun by plaintiff against defendant Williams, in which notice of trial was served at the same time for the same term, and not filed for the same reasons. Both actions were begun by one Yaeck as plaintiff's attorney. Upon his leaving the state, Attorney Rigler took over his practice. During the December, 1913, term of court the attorney for defendant (quoting from his uncontradicted affidavit) had several conversations with Rigler, and was informed by the latter that Attorneys Pugh and Rigler, appearing for appellant, had been retained by the plaintiff as his attorney in these two actions, and Rigler inquired why said cases were not upon the calendar, and was informed that the reason was that plaintiff had not paid the clerk's fees, “but that defendants in both of said actions were going to pay the clerk's fees and put the cases upon the calendar for trial; that said Rigler requested defendants' attorney not to do so until after December 20th, for the reason that he (Rigler) had been advised by plaintiff to dismiss the one action against Williams, and that the plaintiff was considering the advisability of dismissing the case against Williams and Doran, and that he (Rigler) had advised the plaintiff to dismiss both of said actions; that Rigler agreed with affiant (Murtha) that if said cases were to be dismissed that Rigler would advise affiant in writing of such dismissal and pay the costs; that Rigler never so advised affiant, and that on the 22d of December, 1913, affiant caused the papers herein (notice of trial and original answer in the one case and notice of trial, note of issue and original answer in the other) to be filed with the clerk, and that both of said entitled causes were placed upon the calendar and posted upon the bulletin placed near the judge's bench for the advice and convenience of counsel; that Rigler saw the cases marked down upon said bulletin for trial, and spoke to affiant concerning the same;” that said cases were reached for trial and final disposition December 29th, and brought on for trial on said date, whereupon the...