St. Anthony & Dakota Elevator Co. v. Martineau

• Decision Date: 03 June 1915
• Court: North Dakota Supreme Court
• Parties: ST. ANTHONY & DAKOTA ELEVATOR CO. v. MARTINEAU.

30 N.D. 425

153 N.W. 416

ST. ANTHONY & DAKOTA ELEVATOR CO.

v.MARTINEAU.

Supreme Court of North Dakota.

May 16, 1915.

Rehearing Denied June 3, 1915.

Syllabus by the Court.

Error cannot be predicated upon irregularities in procedure, where such irregularities were consented to by the complaining party.

At the trial of an action properly triable by jury the parties, by stipulation, waived a jury and consented to try the cause as an equity suit under the so-called Newman statute. Held, that they are precluded from urging that such irregularity caused a mistrial. Held, further, and for reasons stated in the opinion, that such stipulation could not transpose the case from an action at law to a suit in equity, so as to authorize a trial de novo in the Supreme Court, but that such case can be reviewed only on errors of law.

Even if the action was in equity and properly triable under the Newman law, an appeal from an order granting a new trial would not bring the cause here for trial de novo. A trial de novo in this court is authorized only on an appeal from the final judgment.

An order granting a motion for a new trial will not be disturbed on appeal, if any of the grounds urged on such motion are tenable.

The rule that an order granting a motion for a new trial for alleged insufficiency of the evidence will not be disturbed on appeal, in the absence of a clear showing of an abuse of discretion, does not apply where the judge who granted such motion was not the judge who tried the case and had no opportunity to see and hear the witnesses.

A judgment entered pursuant to findings of fact, conclusions of law, and an order for judgment, which were not filed until after the expiration of the term of office of the judge who made them, is not for such reason void, but at the most is merely irregular, and can be challenged only by a direct attack.

The question whether section 1603, Rev. Codes 1905 (section 2218, Comp. Laws 1913), which imposes a liability upon certain public officers for the performance of contracts entered into on behalf of a municipality which incur indebtedness in excess of the debt limit, contravenes section 61 of the North Dakota Constitution, is urged, but not decided, for the reason that a decision of such point is unnecessary on this appeal.

Section 1603, Rev. Codes 1905 (section 2218, Comp. Laws 1913), construed, and held to impose a penalty or forfeiture within the meaning of section 6788, Rev. Codes 1905 (section 7376, Comp. Laws 1913), limiting the time to three years for the commencement of an action upon a statute for a penalty or forfeiture.

Appeal from District Court, Rolette County; C. W. Buttz, Judge.

Action by the St. Anthony & Dakota Elevator Company against Fortunate Martineau. From an order granting new trial, plaintiff appeals. Affirmed.

See, also, 149 N. W. 355.H. E. Plymat, of Rolla, and Mercer, Swan & Stinchfield, of Minneapolis, Minn., for appellant. Wm. Bateson, of Rolla, and Middaugh, Cuthbert, Smythe & Hunt, of Devils Lake, for respondent.

FISK, C. J.

This is an appeal from an order of the district court of Rolette county granting defendant's motion for a new trial, The action was brought to recover a balance due for lumber sold by plaintiff to the village of St. John. The theory upon which defendant is sought to be held liable to the plaintiff in this action is that the contract between plaintiff and such village was void by reason of the fact that such indebtedness exceeded the debt limit authorized by the Constitution and statutes of this state, and that under section 1603, R. C. 1905, this defendant, who was at the time president of the village board and who participated in the purchase of such lumber, is individually liable for the performance of such contract. It also appears that plaintiff's agent, one Bolstad, who negotiated such sale, was also a member of the village board.

[1][2][3] Notwithstanding the fact that the action was one properly triable to a jury, counsel, at the commencement of the trial in the court below, entered into a stipulation not only waiving a jury, but consenting that the case be tried under what is known as the Newman law, and it was by the consent of the court as well as by the parties, so tried, all evidence offered being received, no rulings made or exceptions saved. This procedure was manifestly irregular but neither party is in a position to predicate error thereon.

The case not coming within the provisions of the so-called Newman law cannot be tried de novo in this court, but can only come here for a review of alleged errors of law. Partiescannot by stipulation change the methods prescribed by law to be pursued on appeals to this court. But even though this were a case properly triable under the Newman law we could not try it de novo in this court on this appeal for the obvious reason that it is not here for trial de novo of the entire case, but as before stated is here on an appeal merely from an order granting a new trial. Appellant's counsel in preparing their brief in this court evidently labored under considerable doubt as to the correct practice to pursue, for they have demanded a review of the entire case de novo and have also specified errors of law. The demand for a trial de novo is, of course, without avail for reasons already stated, but this is of no serious consequence because appellant has challenged, by a proper specification, the correctness of the order appealed from. They have in fact set forth nine so-called specifications of errors of law, but the only specification requisite to a review of the order appealed from was that the trial court erred in making such order.

[4][5] In determining the correctness of such order it is well settled that if any of the grounds urged on the motion for a new trial are tenable, such order will not be disturbed. Such is the holding of this court. Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314. It is also well settled that in reviewing such order the usual rule that the same will not be disturbed in the absence of a showing of an abuse of discretion in making such order does not obtain here, for the judge who granted such order had nothing to do with the trial of the case, he being merely the successor in office of the trial judge. As was said by Chief Justice Corliss in Braithwaite v. Aiken, 2 N. D. 57, 49 N. W. 419:

“But this rule (the rule which makes the exercise of the discretion of the trial court binding upon the appellate court in the absence of a palpable abuse, although the latter court would have reached a different conclusion had it been called upon to exercise its own discretion in the first instance) should have but little weight in this case, for the reason that the judge by whom the new trial was granted was not the judge before whom the case was tried, and therefore was no better qualified by reason of having been present at the trial properly to exercise discretion in the matter than this court. ‘The discretion vested in the trial court to grant or refuse a new trial is neither an arbitrary nor a general discretion. It is based on the theory that the judge who tries a case, having the parties, their witnesses and counsel, before him, with opportunity to observe their demeanor and conduct during the trial, and to note all incidents occurring during its progress likely to affect the result thereof, is better qualified to judge whether a fair trial has been had and substantial justice done than the appellate tribunal.’ To the judge who granted this new trial the record was as cold and lifeless as it is to us. No recollection of the appearance, demeanor, and conduct of witnesses, and parties, no impressions derived from the view of the trial and its manifold incidents, went to make up the judgment that deemed a new trial just. That judgment was the result merely of the comparison of one lifeless record with another-the affidavits with the record of the proceedings on the trial. The reason for the rule that the order granting a new trial is to be sustained, although the trial court would have been justified in reaching a different conclusion, and although the appellate court might deem a different conclusion the better one, therefore, does not exist in this case; and the rule itself should not, under such circumstances, be rigidly followed, if followed at all.”

See, also, Sands v. Cruikshank, 15 S. D. 142, 87 N. W. 589, and Lavin v. Kreger, 20 S. D. 80, 104 N. W. 909.

This brings us to a consideration of the merits. The statutory grounds urged on the motion for a new trial were: (1) Alleged errors of law occurring at the trial; and (2) alleged insufficiency of the evidence to justify the decision of the court. Many specifications of errors of law are contained in the settled statement upon which such motion was based, but for reasons hereafter stated it will not be necessary to notice them all. Certain contentions claimed to be decisive of this appeal are made in respondent's brief, and while we deem but one of them controlling, some of the others are worthy of notice as they involve important practice questions which may frequently arise.

[6] First, it is argued that because the findings of fact, conclusions of law, and order for judgment of the trial judge were not filed until the day after he was succeeded in office by Judge Buttz, the judgment entered pursuant thereto was a nullity, and therefore such fact alone furnished ample justification for the order vacating the same and granting a new trial. A sufficient answer to this contention is the fact that no such ground for the order complained of was suggested to or acted upon by the lower court in making the order. Furthermore, such judgment was not a nullity, but at the most one irregularly entered and avoidable only when properly challenged by direct attack. See opinion on motion to dismiss this appeal, St. Anthony & Dakota Elevator Co. v. Martineau, 149 N. W. 355. No such attack has ever been made...