Quaschnick v. Sandbo
| Decision Date | 09 November 1931 |
| Docket Number | 5978 |
| Citation | 239 N.W. 164,61 N.D. 599 |
| Court | North Dakota Supreme Court |
Rehearing Denied November 25, 1931.
Appeal from the District Court of Adams County, Berry, J.
Reversed.
E C. Wilson, for appellant.
Order granting more time to hear motion for new trial must be based on something that would constitute "good cause shown." Rabinowitz v. Crabtree, 30 N.D. 133 152 N.W. 130; Millers & T. State Bank v. National F. Ins. Co. 55 N.D. 49, 212 N.W. 834; Sharon Mill. Co. v. Galde, 54 N.D. 817, 211 N.W. 589; Falsom v. Norton, 19 N.D. 722, 125 N.W. 310; McKenzie v. Bismarck Water Co. 6 N.D. 361, 71 N.W. 608; Moe v. N.P.R. Co. 2 N.D. 282; McGillycudd v. Morris (S.D.) 65 N.W. 14.
F. M. Jackson, for respondent.
The granting or denial of motion for a new trial on the ground that the evidence is insufficient to sustain the verdict is within the sound discretion of the trial court, and its decision will not be disturbed except where an abuse thereof is clearly shown. Skaar v. Eppeland, 35 N.D. 116, 159 N.W. 707; King v. Hanson, 13 N.D. 85, 99 N.W. 1085.
An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied. Cory v. Spencer, 67 Kan. 648, 63 L.R.A. 275, 73 P. 920.
The power to render judgment included the power to issue all proper processes to enforce its payment. Phelps v. Mutual Reserve Fund L. Ins. Co. 61 L.R.A. 717, 50 C.C.A. 339, 112 F. 453.
Where a district court has jurisdiction of the subject matter of the action all other objections may be waived, and they are waived when not offered or taken at the time the exercise of jurisdiction is first claimed. 11 Cyc. 676.
"When a new trial is granted, the order of the court will be affirmed if upon the whole record it appears the same has been justified, and the consideration of the order in the supreme court is not limited to the particular grounds mentioned in and upon which the order was made." Bristol v. Skapple, 17 N.D. 271, 115 N.W. 841; Ross v. Robertson, 12 N.D. 27, 94 N.W. 765; Gooler v. Eidsness, 18 N.D. 338, 121 N.W. 83; Davis v. Jacobson, 13 N.D. 430, 101 N.W. 314.
"An oral promise guaranteeing payment for goods purchased by another and charged to him is void under the statute of frauds, although guarantee persuaded and induced the sale." MacAdam v. Vallentine (S.D.) 167 N.W. 171.
Plaintiff seeks to recover upon an alleged contract to pay for the support and maintenance of one Ray.
September 16, 1930, the jury returned a verdict in favor of the plaintiff for $ 229.10 after defendant had moved for a directed verdict. The defendant then in open court gave notice of motion for a new trial or for judgment notwithstanding the verdict. Judgment was entered, and notice thereof served upon the defendant on October 18, 1930. The defendant obtained a stay of all proceedings for ninety days and, later, upon an ex parte showing, he was granted another stay of proceedings to expire February 21, 1931. Execution was issued on February 25th, and on March 19, 1931, the defendant, upon another ex parte application, obtained a further stay of proceedings until April 15 1931. At this time he served a "motion for judgment notwithstanding the verdict, and in the alternative for a new trial," to be heard on April 7, 1931. This motion is based upon insufficiency of the evidence to justify the verdict, that "plaintiff failed to prove a cause of action against the defendant," and errors of law occurring at the trial which include alleged errors in instructions to the jury.
The plaintiff failed to appear at the hearing and on April 11, 1931, the court signed an order granting a new trial on the grounds set forth in the order, viz.:
From this order the plaintiff appeals.
The appellant urges the trial court had no jurisdiction to hear and determine the motion for a new trial because it had extended time without good cause being shown. The application for extension of time made in March, 1931, is based upon the affidavit of counsel for the respondent wherein he states the delay in having the motion for new trial brought on for hearing was occasioned by the difficulty in reaching the trial judge.
The trial court did not lose jurisdiction to hear and determine a motion for a new trial by the mere fact of extending the time for making the application and for further proceedings. The motion for new trial was brought on for hearing and was determined by the trial court before the time for appeal from the judgment had expired. Section 7666 of the Comp. Laws says: "The court or judge may, upon good cause shown, in furtherance of justice, extend the time" on an application for a new trial based upon a statement of the case or affidavits. Appellant did not appear at the hearing and question the "good cause" shown. Passing upon such a matter is a judicial act and, even if we determine that "good cause" was not shown, that finding would not be tantamount to a holding that the trial court had no jurisdiction to pass upon it. Granting an extension of time without good cause being shown is merely a judicial error, and does not amount to a loss of jurisdiction.
The first ground in the motion for a new trial is that the evidence is insufficient to sustain the verdict. The trial court did not grant the new trial on this ground, but on the ground that he had erred in not granting the motion for a directed verdict. This ruling on the motion for a directed verdict raises a question of law and therefore the trial Judge in granting this new trial granted it on the theory that he had erred in a matter of law. See Rokusek v. National Union F. Ins. Co. 50 N.D. 125, 195 N.W. 300. Not having filed a memorandum opinion when granting the new trial, as required by § 7945, Comp. Laws 1913, and not stating in the order that he granted the new trial because of the insufficiency of the evidence, the presumption is the new trial was not granted on such ground. See statute and Pratt v. Huber Mfg. Co. 41 N.D. 301, 171 N.W. 246. Therefore this appeal being from the order granting the new trial because of error of law we do not review the evidence, except so far as to determine whether the court erred in holding that he should have directed the verdict. See First Secur. Bank v. Bagley Elevator Co. ante, 140, 237 N.W. 648. In this respect there is no difference between a motion for a directed verdict and a motion for judgment notwithstanding the verdict.
It is unnecessary to set out the evidence. The one great issue in the case was whether the defendant had entered into a contract with the plaintiff to pay for the support and maintenance of this man Ray. If he did he would be required to pay for such support and maintenance. If he did not make such contract then the defendant was not liable. If it were merely a contract to pay Ray's debt if Ray did not pay it the plaintiff could not recover because it is conceded the agreement was not in writing.
There was a square conflict of testimony in this case. The plaintiff and his wife testified explicitly that the defendant asked them to furnish support and maintenance for said Ray and told them he would pay for it -- to charge it to him. If he did so the contract was made with him and it was immaterial to whom the support and maintenance were given. The defendant denied he made such a contract, or any contract. The trial court fully and fairly instructed the jury in regard to the necessity for proving that defendant entered into this contract as his own. There is plenty of corroborative testimony to support the contention of the plaintiff that such contract was made, and the jury found for the plaintiff. Clearly the defendant was not entitled to a directed verdict as there was a very substantial conflict in the testimony, and it was for the jury to determine the credibility of the witnesses. Zink v. Lahart, 16 N.D. 56, 110 N.W. 931; State Bank v. Hurley Farmers Elevator Co. 33 N.D. 272, 156 N.W. 921; Lake Grocery Co. v. Chiostri, 34 N.D. 386, 158 N.W. 998. Therefore the trial court was not in error in denying directed verdict. On the contrary it was an error of law for the court to so hold, and to grant a new trial on that ground.
In the motion for a new trial the defendant alleged numerous errors on the part of the court in the trial of the case. There are six of these allegations of error, and four of them deal with the matters which are involved in the sufficiency of the evidence.
Another deals with alleged error in permitting the plaintiff to show that Ray had assigned a life insurance policy to the defendant as compensation. Plaintiff claimed defendant so stated when the contract was made and if this be so it could be construed as reason assigned why defendant incurred the...
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