State ex rel. Leonard v. Searle

• Citation: 81 Minn. 467
• Decision Date: 03 December 1900
• Docket Number: Nos. 12,471 - (241).,s. 12,471 - (241).
• Parties: STATE ex rel. HELEN T. LEONARD v. D. B. SEARLE.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 467

81 Minn. 467

STATE ex rel. HELEN T. LEONARD v. D. B. SEARLE.¹

Nos. 12,471 - (241).

Supreme Court of Minnesota.

December 3, 1900.

Order issued by the supreme court requiring respondent, as judge of the district court for the Seventh judicial district, to show cause why a peremptory writ of mandamus should not issue, requiring him to settle and allow a case. Writ denied.

Edwin S. Slater, for relator.

LOVELY, J.

The mandate of this court is sought to compel the judge of the Seventh judicial district to settle and allow a proposed case in an action which had been previously tried before that court.

The trial court refused to allow and settle the case upon the ground that the same was not presented in proper time, which request was refused as a matter of strict legal right. The decision of the trial court was dated June 27 of the present year, and was filed two days thereafter. In addition to such decision, the following order was entered: "Stay of proceedings herein is hereby granted until September 1, 1900." On the 29th day of August following counsel for defendants prepared and served upon plaintiff, who was counsel in the action, a proposed case for allowance and settlement by the court, purporting to contain all the evidence therein. Plaintiff returned the same upon the ground that such case had not been served in time, and thereafter proposed no amendments nor took further proceedings with reference to its settlement until the hearing. Counsel for defendants waited until the 21st day of September following, when he served upon the plaintiff a notice that at a special term of the district court to be held at the court house in the city of St. Cloud, Minnesota, on Saturday, September 29, 1900, application would be made for an order settling and allowing the proposed case. At the time and place designated in the notice the court denied defendants' application, and they now petition this court for a peremptory writ of mandamus to require the trial judge to allow and sign the same notwithstanding such refusal.

Questions of considerable importance in practice are suggested by this application, and we have given the subjects presented careful consideration in view thereof. It is provided in G. S. 1894, § 5227, that

"Orders made out of court, and without notice, may be made by any judge of a district court, at any place in the state; but no order to stay proceedings for a longer time than twenty days shall be made, except upon notice to the adverse party."

If this section is literally interpreted, it would follow that the order extending the stay to September 1 was invalid; but we are not prepared to hold, in view of the uniform practice of the trial bench of this state, as well as upon a fair consideration of the purpose sought by the statute, that such provision applies to this case. We think it must be assumed that the decision was made in court without objection from either party, and that the requirement under the above provision of the statute refers only to an ex parte application made to the court at chambers in cases where the stay is not...