La Plante v. Implement Dealers Mut. Fire Ins. Co.

• Decision Date: 14 January 1944
• Docket Number: 6914.
• Citation: 12 N.W.2d 630,73 N.D. 159
• Court: North Dakota Supreme Court

12 N.W.2d 630

73 N.D. 159

LA PLANTE v. IMPLEMENT DEALERS MUT. FIRE INS. CO. et al.

No. 6914.

Supreme Court of North Dakota

January 14, 1944

Syllabus by the Court.

1. A pre-trial conference held under the provisions of chapter 216, Sess.Laws N.D.1943, is not a special proceeding.

2. A pre-trial order made under the provisions of sections 1 and 2 of chapter 216, Sess.Laws N.D.1943, after conference and before trial is subject to such modification by the judge presiding at the trial of the case as the ends of justice may require.

3. A pre-trial order made after conference and before trial under the provisions of sections 1 and 2, chapter 216, Sess.Laws N.D.1943, is not an appealable order.

Lyche & Lyche and Bangs, Hamilton & Bangs, all of Grand Forks, for plaintiff and respondent.

Day Lundberg & Stokes, of Grand Forks, for defendants and appellants.

MORRIS, Chief Justice.

In this action the plaintiff seeks to recover on a contract of employment under which it is contended that the plaintiff was to receive a stipulated salary and a commission on certain gross insurance premiums. The salary has been paid. The defendants deny that the contract of employment provided for commissions.

A pre-trial conference was held under the provisions of chapter 216 Sess.Laws N.D.1943, at which both parties were represented by counsel. The pre-trial court at the completion of the conference entered an order requiring the defendant to either admit that the amount of gross premiums stated in the complaint is correct, or if not correct, file a sworn statement giving the correct amount. He also denied a motion by the defendants that the plaintiff be required to amend his complaint and allege that the contract in question, by its terms, is not to be performed within a year from the making thereof. The order also contains other directions which have not been questioned.

The defendants appealed from the order and challenge the determination of the trial court in directing the disclosure of gross premiums and also in denying the defendants' motion. The plaintiff moved in this court for a dismissal of the appeal on the ground that the order attempted to be appealed from is not an appealable order. We granted the motion and dismissed the appeal.

The pre-trial conference was interpolated in our civil practice by chapter 216, Sess.Laws N.D.1943, which authorizes a judge of the district court or county court of increased jurisdiction to direct attorneys for the parties to appear before him in advance of trial to consider certain pre-trial matters including:

"§ 1(a) The simplification of the issues;

"(b) The necessity or desirability of amendments to the pleadings;

"(c) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary foundation proof and the expense and trouble of securing the same; ***.

"§ 2. Following the conference and preceding the trial of the case therein involved, the judge presiding shall make his order reciting the action taken at the conference as to any of the matters mentioned in subdivisions (a) to (f) inclusive in the preceding section and such order shall control the subsequent course of the action unless the ends of justice require its modification."

Section 4 of the act vests in the pre-trial conference judge authority:

"(a) To hear and decide any objections or motions regarding the pleadings;

"(b) Upon motion of either party, to render judgment on the stipulation of the parties, or on the pleadings if the complaint does not state a cause of action or if the defense is sham or not sustainable;

"(c) Upon failure of the counsel for the plaintiff to appear, to grant a dismissal or non-suit on motion of counsel for the defendant;

"(d) Upon failure of the counsel for the defendant to appear, to proceed with the conference within the limitations specified in section one of this act."

Section 7841, Comp.Laws N.D.1913, sets forth what orders are appealable. Appeals can only be taken from such intermediate orders as are enumerated in the statute. Stimson v. Stimson 30 N.D. 78, 152 N.W. 132; Ostlund v. Ecklund, 42 N.D. 83, 171 N.W. 857. The appellants contend that the following subdivisions of the statute sustain his right of appeal herein.

"1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken."

"2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment."

"4. When it involves the merits of an action or some part thereof; when it orders judgment on application therefor on account of the frivolousness of a demurrer, answer or reply on account of the frivolousness thereof."

It is argued that the order is one affecting the substantial rights of the defendants; that a pre-trial is sufficiently in the nature of a special proceeding to come within the statutory provisions permitting appeals in such matters and that the order involves the merits of the action.

Section 7329, Comp.Laws N.D.1913, divides remedies in courts of justice into two classes: 1. Actions, 2. Special proceedings.

A pre-trial conference is not a special proceeding. It can scarcely be termed a remedy. It is incidental to a remedy; an episode in an ordinary proceeding. West Branch Pants Co. v. Gordon, 51 N.D. 742, 200 N.W. 908. It takes place within an action as the result of a statutory digression from established practice, provided by the legislature for the purpose of clearing away legalistic debris prior to the trial. An effective pre-trial conference should result in narrowing issues, settling pleadings, limiting the number of witnesses, and in general, shorten the actual period of trial. It is hoped that in many cases settlements will be promoted and no trial at all will be necessary.

Although certain powers of compulsion are vested in the pre-trial court, who has authority to order a conference at his discretion and require the attendance of the parties either in person or by counsel, desirable results can usually be best obtained by promoting cooperation between counsel and the court. In Fanciullo v. B. G. & S. Theatre Corp., 297 Mass. 44, 8 N.E.2d 174, 178, the appellate court in discussing the power of the pre-trial court with respect to nonsuits and defaults adopted the following language: "The Court expects, however, that this power will be sparingly used, because the great benefits that have been enjoyed in other places where the Pre-Trial call has been in operation and which may reasonably be expected here, depend upon the fullest co-operation between the bench and bar, and with that co-operation the power to non-suit and default will be practically unnecessary." (The quotation is taken by the Supreme Court from an order of a judge of the Superior Court of Suffolk County.)

The order was made under the provisions of sections 1 an...