Smith v. Hoff

Citation127 N.W. 1047,20 N.D. 419
Decision Date21 September 1910
CourtNorth Dakota Supreme Court

Certiorari by James L. Smith, to review the action of the judge of the eighth judicial district in denying an application to extend the time for the purpose of settling a statement of the case to be used on appeal.

Writ granted and after review the district court is directed to reverse its order made on the first application.

Order reversed, and order entered granting a reasonable time after the transmission of this record to the District Court.

Palda Aaker, Greene, & Kelso, for appellant.

Scott Rex, for respondent.



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 quieted as against any claim of plaintiff. The action was tried to the district court without a jury on April 17, 1909. The district court found the facts to be substantially as alleged by defendant, and ordered the entry of a decree adjudging defendant to be the owner in fee simple of the premises involved in the action, subject, however, to a claim of plaintiff as security for an indebtedness of $ 3,267.60, with interest until paid at the rate of 12 per cent per annum. The conveyance of title held by plaintiff to the premises was declared to be, in law, a mortgage which might thereafter be foreclosed as such in case payment of the amount of the indebtedness specified was not made; and it was decreed that, upon satisfaction of plaintiff's indebtedness, his action should be dismissed and title to the real property in controversy quieted in defendant. A formal decree in accordance with the mandate of this order was entered in the district court on May 15, 1909.

After the order for judgment was made, but prior to the entry of the decree, on April 30, 1909, plaintiff made application to the district court for a stay of proceedings for a period of ninety days for the purpose of preparing a statement of the case to be used upon appeal from the decree. This application was summarily denied. Meantime, between the order for judgment and the entry of the decree by the trial court, the defendant, Hoff, conveyed his entire interest in the lots in the city of Minot to one Robinson. At about the same time and without knowledge of this conveyance, the Minneapolis, St. Paul, & Sault Sainte Marie Railway Company commenced a proceeding against Hoff for the purpose of condemning the said lots in the city of Minot to its use as station grounds. When the attorney for the railway company became advised of the fact that the title to the lots was no longer in Hoff, who was sole defendant in the condemnation proceedings, it dismissed the action, and on or about May 22, 1909, commenced another, in which plaintiff and Robinson, defendant's grantee, were named as defendants. Both defendants answered in the condemnation proceeding, and, before a trial of the same could be reached in regular course, the judge of the district court left the state for his summer vacation and was absent for a period of sixty days, returning to Minot and his district about September 1, 1909. During the month of August, 1909, Mr. L. W. Gammons, the sole attorney for the railway company in the condemnation proceedings, was taken ill, and from that time until his death, on December 17, 1909, was totally incapacitated for the performance of any service with reference to the trial of said condemnation proceeding. It was, however, regularly noticed for trial and placed on the trial calendar of the October, 1909, term of the district court and of a special term held in January, 1910. On January 4, 1910, plaintiff's attorneys were appointed attorneys for the railway company as successors of Mr. Gammons, and at once proceeded to bring the condemnation proceeding to trial. It then transpired that certain jurisdictional facts necessary to the maintenance of such proceeding were known only to Mr. Gammons; and the railway company, being unable without his testimony to make proof of these facts or to secure an admission of the truth of the same from the attorneys for Mr. Robinson, found it was necessary to again dismiss the condemnation proceeding. It was dismissed accordingly on February 17, 1910, and immediately thereafter, on the same day, another proceeding was commenced, which was brought to trial with promptness and despatch on March 16, 1910. A jury then made its award of damages for the taking of the lots in Minot in the sum of $ 5,500, which sum was entered in a final order of condemnation of said premises on March 25, 1910.

It appears from the showing made by plaintiff that intending to appeal from the judgment entered upon the order of the district court made on April 15, 1909, for the purpose of preparing a statement of the case, he ordered from the official reporter of said district a transcript of all proceedings had upon the trial of said proceeding, and that such transcript was delivered to him on or about May 17 1909. As explanation of and justification for his subsequent delay in completing and procuring the settlement of such statement, he avers that at this time it became apparent that the lots in the city of Minot which represented almost the...

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