Stacy Fruit Company, a Corp. v. McClellan

• Decision Date: 24 May 1913
• Citation: 142 N.W. 44,25 N.D. 449
• Court: North Dakota Supreme Court

142 N.W. 44

25 N.D. 449

STACY FRUIT COMPANY, a Corporation, v. GEORGE MCCLELLAN

Supreme Court of North Dakota

May 24, 1913

Appeal from an order of the District Court for Benson County, Cowan J.

Reversed.

Order vacated and set aside, and judgment of the District Court of Benson county, reinstated. Appellant recovered judgment for costs and disbursements.

Styles & Koffel, for appellant.

The action was in the district court for trial, regardless of what had occurred in justice's court, because the appeal was taken upon questions of both law and fact, and the notice of appeal was a waiver of mistakes in the justice's court. Rev. Codes 1905, § 8509.

It was not an appeal upon questions of law alone. The notice of appeal does not specify the errors of law complained of; and on such appeal only such questions as are specified as error can be reviewed. Rae v. Chicago, M. & St. P. R. Co. 14 N.D. 511, 105 N.W. 721; Rev. Codes 1905, § 8501.

The appeal taken invoked the jurisdiction of the district court to try the case anew, and that court had jurisdiction to enter the judgment it did enter. N.D. Codes, § 8509; Lyons v. Miller, 2 N.D. 1, 48 N.W. 514; Mouser v. Palmer, 2 S.D. 466, 50 N.W. 967; Wimsey v McAdams, 12 S.D. 509, 61 N.W. 884; William Deering & Co. v. Venne, 7 N.D. 583, 75 N.W. 926; Dikeman v Struck, 76 Wis. 332, 45 N.W. 118; 2 Enc. Pl. & Pr. 614 note 2; Seurer v. Horst, 31 Minn. 479, 18 N.W. 283.

A justice's record and return cannot be attacked by affidavit. Mouser v. Palmer, 2 N.D. 466, 50 N.W. 967.

The service of notice of intention, provided by § 7065 of the Code, is a prerequisite to the authority of the district court to entertain the motion. MacGregor v. Pierce, 17 S.D. 51, 95 N.W. 281; Moddie v. Breiland, 9 S.D. 506, 70 N.W. 637.

Ground for new trial must be specified in notice of intention to move for new trial. State ex rel. Hart-Parr Co. v. Robb-Lawrence Co. 17 N.D. 265, 16 L.R.A. (N.S.) 227, 115 N.W. 846.

Defendant's motion was to vacate the judgment; neither party moved for a new trial. It was too late for court to grant a new trial of its own motion. Gould v. Duluth & D. Elev. Co. 2 N.D. 216, 50 N.W. 969.

Stuart & Comstock, for respondent.

Where a paper is left with the proper officer for the purpose of being filed, the mere fact that he omits to mark it filed is immaterial. 7 Am. & Eng. Enc. Law, 960, note 1, pp. 960-963; Schulte v. First Nat. Bank, 34 Minn. 48, 24 N.W. 320; Nickson v. Blair, 59 Iowa 531, 13 N.W. 641; Witt v. Meyer, 69 Wis. 595, 35 N.W. 25; Stone v. Crow, 2 S.D. 525, 51 N.W. 335; Starkweather v. Bell, 12 S.D. 146, 80 N.W. 185; Trinidad Asphalt Mfg. Co. v. Buckstaff Bros. Mfg. Co. 86 Neb. 623, 136 Am. St. Rep. 710, 126 N.W. 293; 8 Enc. Pl. & Pr. 923, 924; State ex rel. Seth Thomas Clock Co. v. Cass County, 60 Neb. 566, 83 N.W. 735; Dredla v. Baache, 60 Neb. 655, 83 N.W. 918; Coler v. Rhoda School Twp. 6 S.D. 640, 63 N.W. 158; Smith v. Nicholson, 5 N.D. 426, 67 N.W. 296; 19 Cyc. 530.

The filing of the motion and affidavit for change of venue, and the payment of $ 1, deprived the justice of jurisdiction of the subject-matter of the action. Orcutt v. Conrad, 10 N.D. 434, 87 N.W. 982; State v. Kent, 4 N.D. 577, 27 L.R.A. 686, 62 N.W. 631; State v. Finder, 12 S.D. 423, 81 N.W. 959; Foster v. Bacon, 9 Wis. 346; Western Bank v. Tallman, 15 Wis. 92; State v. Rowan, 35 Wis. 303; Vidger v. Nolin, 10 N.D. 359, 87 N.W. 593; Wimsey v. McAdams, 12 S.D. 509, 81 N.W. 884; Long v. Sharp, 5 Ore. 438; Plunket v. Evans, 2 S.D. 434, 50 N.W. 961; Benedict v. Johnson, 4 S.D. 387, 57 N.W. 66; Austell v. Atlanta, 100 Ga. 187, 27 S.E. 983; Arnegaard v. Arnegaard, 7 N.D. 475, 41 L.R.A. 258, 75 N.W. 797; Fatt v. Fatt, 78 Wis. 633, 48 N.W. 53; Rines v. Boyd, 7 Wis. 155.

The change of venue deprives the justice of all discretion and all further jurisdiction in the case. Runals v. Brown, 11 Wis. 185; Dykeman v. Budd, 3 Wis. 640; Damp. v. Dane, 29 Wis. 431; Plano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N.W. 85.

The motion to set aside the judgment was the proper remedy. Freeman v. Wood, 11 N.D. 1, 88 N.W. 721; 1 Black, Judgm. 1891 ed. § 303, p. 379; Benedict v. Johnson, 4 S.D. 387, 57 N.W. 66.

OPINION

GOSS, J.

This action was begun in justice court to recover a money judgment in an amount within the jurisdiction of that court to determine. Service of summons upon defendant was had, who, on return day, appeared in person and gave the justice $ 1 and an affidavit of prejudice and demand for change of venue, as required under §§ 8375 and 8377, Rev. Codes 1905, which the justice received but refused to file, because an additional fee of 10 cents therefor was not paid him. Defendant did not further participate in proceedings in justice court, which court thereafter ignored the attempt at obtaining a change of venue and entered up judgment against defendant, who subsequently appealed to the district court by a general appeal upon both law and fact, and demanded in his notice of appeal a trial de novo in the district court. Defendant, also, with his notice and undertaking on appeal, served a verified answer containing a statement that it was served, because required by statute to confer jurisdiction upon appeal for any purposes, but attempting to reserve the right in district court to make thereunder a special appearance to except to the jurisdiction of that court. Thereafter the district court, on defendant's default, tried the cause, made findings and conclusions, and ordered judgment in favor of plaintiff, and on October 3, 1910, judgment for $ 76.98 was entered. Subsequently, on September 8, 1911, on defendant's application after due notice, the district court, on motion to vacate and to dismiss for lack of jurisdiction of the subject-matter of the suit, set aside its judgment, and granted a new trial, and ordered that the case stand for trial and final disposition upon the regular December, 1911, calendar of the district court. The order does not show the grounds upon which it was entered. The motion for vacation of judgment, thus set aside, was based upon a want of jurisdiction of either court of the subject-matter of the action, and sought a dismissal. Instead, the court vacated the judgment but denied a dismissal, retaining the case for trial de novo. From such order the plaintiff, whose judgment against defendant was thus vacated, appeals, contending that the order vacating the judgment was not made upon valid grounds, and that the judgment vacated should be reinstated.

The issues involved are decided by the determination of whether the action of the justice court, in failing and refusing to file the affidavit for change of venue and make its order transferring the cause, devested that court of jurisdiction over the subject-matter of this action. If so, then it follows, on the authority of Vidger v. Nolin, 10 N.D. 353, 87 N.W. 593, that the appeal on law and fact and demand for trial de novo, conferring appellate jurisdiction only of the person of the appellant by his voluntary act and appearance, could not vest the appellate court with jurisdiction of subject-matter where the lower tribunal did not have jurisdiction of subject-matter.

Manifestly the lower court, at the time of the application for change of venue, had jurisdiction of both person and subject-matter and therefore was fully vested with authority to determine the cause. The payment of the dollar, and the presenting of the affidavit and application to the justice, were all that were required of the party desiring such change of venue, and it thereupon became the duty of the justice to grant a change of trial and to act under the provisions of § 8377. To all intents and purposes, therefore, the affidavit and application for a change of venue must be considered as filed in justice court after presentation. Does such fact devest the justice of jurisdiction of the cause for all purposes, so as to render an appeal from a judgment, afterwards erroneously rendered, abortive and void as not transferring jurisdiction of subject-matter to the appellate court? This must be answered in the negative. The statute reads: "From the time the order changing the place of trial is made, the court to which the action is thereby transferred has the same jurisdiction over it as though it had been commenced in such court. After an order has been made, transferring the action for trial to another court, the following proceedings must be had." Under the statute jurisdiction to try the cause is superseded or stayed, with no power remaining to proceed or do aught but order a change of venue (40 Cyc. 155; Orcutt v. Conrad, 10 N.D. 431, 87 N.W. 982), but jurisdiction of the cause is not transferred until the order of transfer is made, which order completely devests the justice court making it of jurisdiction, and clothes with jurisdiction the justice court, designated in the order as the court to which the case is transferred. (4 Enc. Pl. & Pr. 470-486.) Manifestly, jurisdiction previously obtained must, throughout the change, be vested at all times either in the court where the action is brought or the one to which it is transferred; and the statute determines the moment of such change to be the instant of the signing of the order of transfer. Before the making of the order, notwithstanding the affidavit and application for a change of venue may be on file with the justice, jurisdiction of the subject-matter still remains there; and under this record it has always remained in such court wherein the action was begun until devested by the appeal which thereby placed it in the district court. Respondent urges that this motion on affidavit for a change of venue ousts the justice court wherein it is filed of all jurisdiction for all purposes except to transfer the case....