State ex rel. Berndt v. Templeton

• Decision Date: 24 April 1911
• Citation: 130 N.W. 1009,21 N.D. 470
• Parties: STATE ex rel. BERNDT v. TEMPLETON, District Judge.
• Court: North Dakota Supreme Court

21 N.D. 470

130 N.W. 1009

STATE ex rel.BERNDT

v.TEMPLETON, District Judge.

Supreme Court of North Dakota.

April 24, 1911.

Syllabus by the Court.

Section 7229, Rev. Codes 1905, which prescribes the procedure both in the district and Supreme Courts in certain actions triable to the court without a jury, does not take from the district court the power to entertain motions for new trials upon the ground of newly discovered evidence.

Mandamus by the State, on the relation of August Berndt, against Charles F. Templeton, Judge of the District Court of the First Judicial District. Writ allowed.Guy C. H. Corliss, for relator. Henry G. Middaugh, for defendant.

FISK, J.

This is an application for a writ of mandamus to compel defendant to exercise jurisdiction to hear and determine a motion for a new trial upon the ground of newly discovered evidence in a certain action pending in the district court, and which was tried and decided by the court under the so-called “Newman law,” being section 7229, Rev, Codes 1905.

The sole question for determination on this application is the power of the district court to entertain such motion. That such power exists is, we think, entirely clear. Both by statute and precedents such power is authorized. Section 7063, Rev. Codes, provides: “The former verdict or other decision may be vacated and a new trial granted * * * for any of the following causes: * * * (4) Newly discovered evidence. * * *” The words above italicized disclose that the legislative intent to authorize such motions in court cases is apparent; for, otherwise, such words would have no meaning in the statute. Such is also the general rule in states where the distinction between law and equity actions is abolished. 29 Cyc. 723, and cases cited in note 21. See, also, Law v. Smith, 34 Utah, 394, 98 Pac. 300.

But counsel for defendant relies on two decisions by this court as announcing the contrary rule of practice. Such decisions are Pratt v. Beiseker, 17 N. D. 243, 115 N. W. 835, and Bank v. Town of Norton, 12 N. D. 497, 97 N. W. 860. Before noticing these cases it is well to briefly refer to section 7229. This statute was first enacted in 1897, and governs the practice both in the trial and appellate courts in certain actions tried to the court without a jury. By this statute it is expressly provided that “no new trial shall be granted by the district court on the ground that incompetent or irrelevant evidence has been received, or on the ground of the insufficiency of the evidence.” It will thus be readily observed that it could not have been the intent to abolish by this statute any grounds for granting new trials except those specially mentioned. This seems too clear for debate. It is equally clear that the sole object which the Legislature had in view in thus depriving the district courts of the power to grant new trials on the above specified grounds was merely because such modification of the prior practice was essential to effectuate the harmonious working of this new statute, which provides for trials anew on appeals to the Supreme Court. In view of the provisions of such statute, requiring all evidence offered to be received, and requiring trials de novo in this court on appeal, there no longer remains any reason for permitting the granting of new trials in the district court on account of errors in admitting or excluding testimony, or on account of the insufficiency of the evidence. As to such matters the statute makes provision for a new trial or trial anew in the Supreme Court. McKenzie v. Water Co., 6 N. D. 361, 71 N. W. 608. But this is not true as to newly discovered evidence. While the case is tried anew in this court, it must be determined on the record made in the lower court. Newly discovered evidence, although absolutely conclusive of the merits, can be introduced only in the trial court, and it, of course, cannot be introduced there, except where a new trial is had. It logically follows, if defendant's contention be sound, that there is no way in which such new evidence may be made available to the party discovering it. Such a condition might often result in a miscarriage of justice.

But how stand the prior decisions of ...