Skaar v. Eppeland

• Citation: 159 N.W. 707,35 N.D. 116
• Decision Date: 14 September 1916
• Court: United States State Supreme Court of North Dakota

159 N.W. 707

35 N.D. 116

GERTRUDE SKAAR v. E. A. EPPELAND

Supreme Court of North Dakota

September 14, 1916

Appeal from the District Court of Mountrail County, Fisk, J.

From an order granting a new trial, plaintiff appeals.

Affirmed.

P. D Jones, T. M. Keogan, and E. R. Sinkler, for appellant.

The time for appeal having expired, the court had no jurisdiction to entertain the motion or grant the motion for a new trial. The action was no longer pending in the district court at the time of the motion for a new trial. New Practice Act, 1913 § 14; Code Civ. Proc. § 7346; Bright v Juhl, 16 S.D. 440, 93 N.W. 648.

The court's jurisdiction over the action ceases as soon as the time for appeal has expired, and the action is no longer pending. Kimball v. Palmerlee, 29 Minn. 302, 13 N.W 129; Deering v. Johnson, 33 Minn. 97, 22 N.W. 174; Yerkes v. McHenry, 6 Dak. 5, 50 N.W. 485; Richardson v. Rogers, 37 Minn. 461, 35 N.W. 270; Pugh v. Reat, 107 Ill. 440; Ferger v. Wesler, 35 Ind. 53; Knox v. Clifford, 41 Wis. 458; Whitney v. Karner, 44 Wis. 563; McKnight v. Livingston, 46 Wis. 356, 1 N.W. 14.

The time for appeal expires six months after notice of entry of judgment is given. After the expiration of such time, the action ceases to be pending. It was therefore not pending when the motion for a new trial was made. A court cannot assume jurisdiction over an action not pending. The legislature intended that there should come a time when litigation in a given case would be at an end. Wilson v. Kryger, 26 N.D. 77, 51 L.R.A.(N.S.) 760, 143 N.W. 764.

Henry J. Linde and Francis J. Murphy (John E. Greene, of counsel), for respondent.

It is true that an appeal from a judgment must be taken within six months after notice of the entry of the judgment, but where a motion for a new trial is made within that time, and is argued and submitted, the mere fact that the court does not decide the motion until after the expiration of the six months' period does not deprive it of jurisdiction of the case, nor does it destroy the moving party's right of appeal. King v. Hanson, 13 N.D. 85, 99 N.W. 1085; Codes of 1899, §§ 5473, 5474; Comp. Laws 1913, § 7664.

"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." Comp. Laws 1913, § 7956; Cory v. Spencer, 67 Kan. 648, 63 L.R.A. 275, 73 P. 920.

Jurisdiction of the district court to deal with one of its judgments is not at an end when the time for appeal has expired. Const. 103; Comp. Laws 1913, § 7349.

"The power to render judgment included the power to issue all proper processes to enforce its payment. The jurisdiction of the court over the controversy and over the parties, acquired in the primary case by service of process, continued until its judgment should be satisfied. This is a well-settled rule in respect to the jurisdiction of courts of record." Phelps v. Mutual Reserve Fund Life Asso. 61 L.R.A. 717, 50 C. C. A. 339, 112 F. 453; Riggs v. Johnson County, 6 Wall. 166, 18 L.Ed. 768; Covell v. Heyman, 111 U.S. 176, 28 L.Ed. 390, 4 S.Ct. 355; Rio Grande R. Co. v. Gomila (Rio Grande R. Co. v. Vinet) 132 U.S. 478, 33 L.Ed. 400, 10 S.Ct. 155.

Where the 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 that the same is 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 & S. Co. 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.

OPINION

CHRISTIANSON, J.

This is an appeal from an order granting defendant's motion for a new trial. Plaintiff sued to recover damages for certain personal injuries alleged to have been sustained at the hands of defendant, and was awarded a verdict in the sum of $ 1,000.

No statement of case was settled, and there is nothing to show what proceedings were had at, or subsequent to, the trial, except as evidenced by the various papers contained in the record herein, to which we will refer later.

A transcript of the evidence adduced, and the proceedings had, upon the trial, certified to by the court stenographer, has been transmitted to this court, but such transcript has not been settled or certified by the trial judge as provided by § 7655, Comp. Laws 1913, and is not mentioned in the order granting a new trial or in the certificate signed by the trial judge identifying the different papers constituting the judgment roll in the action.

It appears from the record in this case, however, that judgment was entered, and notice of entry thereof served, on November 26, 1913; that notice of a motion for a new trial and several affidavits in support of such motion were served upon plaintiff's attorney on April 12, 1914; that said motion for a new trial was noticed to be heard at the city of Williston on April 23, 1914; that said motion subsequently came on for hearing, and the trial court entered an order granting a new trial, which order reads, in part, as follows: "The above-entitled action having come on for hearing upon a motion of the defendant for a new trial therein, and having been submitted to this court by the respective parties on or about the 3d day of June, 1914, upon written briefs and stipulations, and the matter not having been reached until this date by the court on account of having been engaged in the trial of jury cases since the submission of said motion, and the court, having duly considered the motion of the defendant, and the grounds thereof, together with the briefs submitted by both parties, is of the opinion that a new trial should be granted."

(1) Appellant asserts that the order should be reversed for the reason that the motion for a new trial was heard and decided by the trial court more than six months after the service of notice of entry of judgment.

As already stated, it appears that notice of entry of judgment was served on November 26, 1913. The time for appeal from the judgment would therefore expire on May 26, 1914. The notice of motion for a new trial, served on April 12, 1914, fixing April 23, 1914, as the date for the hearing of such motion, was therefore served and the motion noticed to be heard within the six-month period. The record fails to show the reason for the delay in the hearing of the motion, but the recitals in the order show that the motion was "submitted to the court by the respective parties on or about the 3d day of June, 1914, upon written briefs and stipulations."

A party asserting error has the burden of proving it, and must present a record affirmatively showing such error. Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592.

"It is a general rule of wide application that an appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment, order, or decree from which the appeal was taken. In other words it will be presumed on appeal, in the absence of a contrary showing, that the trial court acted correctly and did not err. Indeed, error is never presumed on appeal, but must be affirmatively shown by the record; and the burden of so showing it is on the party alleging it, or, as sometimes stated, the burden of showing error affirmatively is upon appellant or plaintiff in error." 4 C. J. 731.

But "the presumptions which may be so indulged on appeal are limited to those which will sustain and support the order, judgment, or decree; presumptions which would result in a reversal will not be indulged, except on review of a ruling on a demurrer to the evidence or on a motion to dismiss, nonsuit, or direct a verdict on the ground of the insufficiency of the evidence, and even in that case the appellate court does not indulge in presumptions for the express purpose of reversing the judgment, order, or decree, but reviews the ruling on the theory that all inferences, presumptions, and intendments should be indulged in favor of the sufficiency of the evidence to require its submission to the jury." 4 C. J. 733.

And "on a partial or incomplete record, the appellate court will presume any conceivable state of facts within the scope of the pleadings and not inconsistent with the record which will sustain and support the ruling or decision complained of; but it will not, for the purpose of finding reversible error, presume the existence of facts as to which the record is silent." 4 C. J. 736.

So it will be presumed that a statement of case was presented to the judge for settlement at the proper time; and, if it appears that the statement was not settled within the time provided, it will be presumed that the time was extended as provided by law, and that the statement was presented for settlement within such extended time. Johnson v. Northern P. R. Co. 1 N.D. 354, 48 N.W. 227; Gade v. Collins, 8 S.D. 322, 66 N.W. 466; McDonald v. Beatty, 9 N.D. 293, 83 N.W. 224; 4 C. J. 793.

So where a new trial is ordered it will be presumed (unless the contrary is shown) that the motion was properly and timely made; that there was good cause for any apparent delay in the presentation thereof; or that the time was extended by consent of the parties. Churchill v. Flournoy, 127 Cal. 355, 59 P. 791; 4 C. J. 783.

In the case at bar it affirmatively appears from the record that defendant regularly noticed a motion for a new trial to be heard on April 23,...