Smith v. Hoff
| Court | United States State Supreme Court of North Dakota |
| Citation | 20 N.D. 419,127 N.W. 1047 |
| Parties | SMITH v. HOFF. |
| Decision Date | 21 September 1910 |
SMITH
v.
HOFF.
Supreme Court of North Dakota.
Sept. 21, 1910.
Section 7068, Rev. Codes 1905, providing that upon good cause shown and in furtherance of justice a district court may extend the time within which any of the acts mentioned in sections 7058 and 7065 may be done either before or after the time limited therefor has expired, is a remedial statute, and must be liberally construed in favor of the purposes obviously intended to be served by its enactment.
The purpose of providing a limited time for proposing and settling a statement of the case to be used on appeal is, under present conditions fully served if these steps are taken at such time and in such manner as not to interfere with the prompt and orderly disposition of the case upon appeal.
If from the showing of an applicant for an extension of time for the purpose of settling a statement of the case to be used on appeal it appears that the appellant is prosecuting the appeal in good faith upon meritorious grounds, and that there is reasonable excuse for his failure to take the preliminary steps within the time limited by law, it is an abuse of discretion to deny him a reasonable extension of time for these purposes.
The power given by Rev. Codes 1905, § 7068, permitting district courts upon good cause shown, and in furtherance of justice, to extend the time within which a statement of the case may be prepared and settled either before or after expiration of the time limited for such purpose, presupposes liberality in its exercise which is not an absolute nonreviewable authority, but a judicial discretion into the soundness of which the Supreme Court may inquire whenever properly called to its attention, but, unless there is grave question whether the discretion has been soundly exercised, it will not be disturbed.
Certiorari by James L. Smith to review the action of the judge of the Eighth judicial district in denying an application for extension of time for settling a statement of the case. Writ granted, and district court directed to allow additional time.
Palda, Aaker, Greene & Kelso, for appellant. Scott Rex, for respondent.
ELLSWORTH, J.
The plaintiff and appellant in the above-entitled action applied to and obtained from this court a writ of certiorari for the purpose of reviewing an order of the district court of the Eighth judicial district denying plaintiff's application for a stay of proceedings in the action and an extension of time within which to prepare and settle a statement of the case to be used upon appeal. The full record acted upon by the district court has been certified and transmitted to this court, and, on the hearing ordered by this court, no suggestion has been made that the practice pursued by appellant is not the proper means of obtaining a review of an order of the district court from which there is no appeal, and no plain, speedy, and adequate remedy provided by law for any detriment or prejudice to a party arising therefrom. We will, therefore, review the facts out of which the proceeding in the district court arose, and the action of the court thereon for the purpose of determining whether or not the authority of said court in the matter has been regularly pursued.
Plaintiff's action is, in substance, one to determine adverse claims to real property. He alleges that he is the owner in fee of certain lands situated in Ward county and of certain lots in the city of Minot, and that while such owner he entered into a contract with the defendant for the sale to him of the same; that defendant failed to pay the purchase price agreed upon in said contract and to comply with its terms in other important particulars; and that plaintiff has thereupon exercised his right under the terms of said contract to cancel and declare the same forfeited and void. The relief prayed for is that the title of plaintiff may be quieted against any claims of defendant arising out of said contract. The defendant answered, denying plaintiff's title to all of the real property in controversy, and alleged, in substance, that he, the defendant, was the owner in fee of the property, and that any conveyance of title made to plaintiff was held by him solely as security for the repayment of a certain loan or advance of money made by plaintiff to defendant, and prayed that the amount of indebtedness of defendant to plaintiff for which the title of said property was held as security be determined, and that upon payment of the same the title of defendant be...
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Schriock v. Schriock, 8064
...are remedial in their nature and should be liberally construed to the end that an appeal may be determined on its merits. Smith v. Hoff, 20 N.D. 419, 127 N.W. 1047.' Muhlhauser v. Becker, 76 N.D. 402, 37 N.W.2d 352, at 359 and In Millers' & Traders' State Bank v. National Fire Ins. Co., 55 ......
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Permann v. Knife River Coal Min. Co., 8517
...have been made within the statutory period for an extension of time within which to settle the statement of the case. In Smith v. Hoff, 20 N.D. 419, 127 N.W. 1047, 1050 (1910), this court laid down tests to determine whether or not the party applying after the expiration of the statutory ti......
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Rabinowitz v. Crabtree
...7 S.D. 592, 65 N.W. 14. The trial court's action will not be disturbed unless there has been an abuse of discretion. Smith v. Hoff, 20 N.D. 419, 127 N.W. 1047; Folsom v. Norton, 19 N.D. 722, 125 N.W. 311. Ignorance of the law affords no good excuse for negligence, and is not such a mistake ......
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Muhlhauser v. Becker, 7077.
...are remedial in their nature and should be liberally construed to the end that an appeal may be determined on its merits. Smith v. Hoff, 20 N.D. 419, 127 N.W. 1047. The evidence discloses that the estate of decedent consisted of two farms, one small house in which the decedent had lived, an......