Patterson Land Co. v. Lynn

• Decision Date: 21 June 1919
• Citation: 175 N.W. 211,44 N.D. 251
• Court: North Dakota Supreme Court

175 N.W. 211

44 N.D. 251

PATTERSON LAND COMPANY, Appellant, v. GEO. W. LYNN, Respondent

Supreme Court of North Dakota

June 21, 1919

Motion to vacate decision and reinstate and reopen cause.

Motion denied.

Motion denied.

George W. Newton, R. N. Stevens, H. C. Lynn, Geo. W. Lynn, and H. A Bronson, for motion.

Watson & Young and E. T. Conmy, contra.

GRACE J., concurs in the result. ROBINSON, J., dissenting. BRONSON J., did not participate.

OPINION

PER CURIAM.

The original opinion in this case was filed March 6, 1914. A rehearing was denied April 11, 1914 (see 27 N.D. 391, 147 N.W. 256). A motion to recall the remittitur and reinstate the appeal was filed March 14, 1917, and, after hearing had was denied by an opinion filed April 28, 1917 (36 N.D. 341, 162 N.W. 702). In that opinion this court said: "Among other questions urged is that this court rendered judgment upon an amended pleading, without permitting a trial upon the issue formed by such amendment. It is contended that the proper practice would have been to have directed the amendment to be allowed and remanded the case for trial upon the pleading as amended. We have examined the original briefs, and find that considerable space was devoted to a discussion of whether the trial court should have allowed an amendment of the complaint. We have also examined the petition for rehearing, which consists of eighty-seven pages of typewritten matter. This petition is a complete reargument of the entire cause, and assails practically every portion of the opinion. The last eight pages of the petition are devoted almost exclusively to an attack on that portion of the opinion which deals with and allows the proposed amendment to the complaint and orders judgment upon the complaint as amended. The matter is argued at length and with great particularity, and it was claimed then, as now, that where an amendment of the pleading has been allowed, evidence formerly taken is not admissible to support substantive matter in the pleading as amended. No claim, however, was made in the petition for rehearing, that any actual prejudice had resulted or that the defendant had any evidence which he desired to offer upon the issues arising under the amended pleading. It will be noted that the original opinion was handed down and a rehearing denied more than three years ago. It also appears that judgment was entered in the district court, in accordance with the findings and conclusions of this court, in July, 1914, and that notice of entry of judgment was served upon the defendant at that time. It further appears that proceedings have been had in the district court in accordance with the directions contained in the former opinion herein, to ascertain the amounts to be paid by the Patterson Land Company to the defendant for the amounts expended and incurred by him in obtaining titles, taxes paid by him, and the cost of any improvements which he may have placed on the premises. There is no claim that defendant has questioned the binding effect of the former decision during all of this time." Patterson Land Co. v. Lynn, 36 N.D. 341-343, 162 N.W. 702.

The defendant has now filed a motion "to vacate the determination, order, judgment, and decree of this court, made in the above-entitled cause on the 6th day of March, 1914, and to direct the district court of Emmons county to vacate any and all judgments, decrees, and acts done under the direction of this said judgment of this court, on the ground that this court had no jurisdiction to grant the relief pretended by said judgment and decree to be granted, and said judgment and decree is absolutely void and of no effect." The specific ground for the present motion is that this court erred in its original decision in allowing certain amendments to the complaint which were offered during the course of the trial and rejected by the trial court. See, 27 N.D. 391, 416, 147 N.W. 256. Defendant contends that the amendments changed the "subject-matter" and introduced the proposition of an involuntary trust, as a "new subject-matter."

This court doubtless has power to review rulings on proposed amendments. Under our statute pleadings may be amended even after judgment. Comp. Laws 1913, § 7482.

This case was appealed to this court for a trial de novo. The statute provides that in such cases "the supreme court shall try anew the question of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and either affirm or modify the judgment or direct a new judgment to be entered in the district court." Comp. Laws 1913, § 7846.

The statute contemplates that when a retrial of the entire case is demanded, the supreme court shall review the entire record and "render final judgment, and thus, by its mandate, forever terminate the particular litigation." Christianson v. Farmers' Warehouse Asso. 5 N.D. 438, 445, 32 L.R.A. 730, 67 N.W. 300. It is only in unusual cases, and where the court "deems such cause necessary to be accomplishment of justice," that a new trial may be ordered. § 7846, supra.

It was doubtless the intention of the legislature, by the enactment of this statute, to create "a means of terminating litigation in a manner that should at once possess the strongest probability of absolute justice with the least expenditure of time and money;" and to avoid "the delay and expense of the second trial, and the risk of further errors that might necessitate a second appeal." Christianson v. Farmers' Warehouse Asso. supra.

It is for this court to...